Glastonbury v Townsville City Council - [2011] QPEC 128

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Glastonbury & Anor v Townsville City Council & Ors [2011] QPEC 128

PARTIES:

John GLASTONBURY and Joseph SHLEGERIS
(Applicants)
and
TOWNSVILLE CITY COUNCIL
(Respondent)
and
MACCULLUM & PARTNERS ARCHITECTS
(First Co-Respondent)
and
Robert John STRANO and Cindy Louise STRANO
(Second Co-Respondents)

FILE NO/S:

320 of 2009

DIVISION:

Planning & Environment Court

PROCEEDING:

Originating Application

ORIGINATING COURT:

Planning & Environment Court, Townsville

DELIVERED ON:

20 September 2011

DELIVERED AT:

Townsville

HEARING DATES:

14, 15 & 16 March 2011

JUDGE:

Durward SC DCJ

ORDERS:

1. Application refused.

CATCHWORDS:

ENVIRONMENT AND PLANNING - DECISION OF COUNCIL APPROVING DEVELOPMENT APPLICATION FOR MCU - EXTENSIONS TO DWELLING - CODE ASSESSABLE - whether invalid - whether errors of fact, taking into account of irrelevant considerations and failure to take into account relevant considerations - whether failure to apply planning scheme provisions - whether Decision Notice is defective

ENVIRONMENT & PLANNING - CODE ASSESSABLE DEVELOPMENT - ASSESSMENT PROCESS - whether jurisdictional error - whether Wednesbury principle applies - whether Council's decision so unreasonable that no reasonable assessment manager could have made it

ENVIRONMENT & PLANNING - ASSESSMENT PROCESS - extensive informal submissions and representations between co-respondent and council prior to lodgement of Development Application enduring assessment process - whether submissions and representations able to be taken into account by decision maker - whether in fact they were taken into account

ENVIRONMENT & PLANNING - apprehended bias - whether apprehended bias on part of council planning director - whether pre-judgment of Development Application

PRACTICE & PROCEDURE - PLEADINGS - ORIGINATING APPLICATION - AMENDMENTS - whether leave to further amend should be granted on eve of trial

DELEGATION OF POWERS - whether determination of Development Application should have been made by council resolution - whether delegation to council planning director proper or validly exercised

LEGISLATION:

Integrated Planning Act 1997 ss 1.2.1, 1.2.2, 1.2.3, 3.5.4, 3.5.13, 3.5.15, 4.1.21, 4.1.22, Schedule 10; Sustainable Planning Act 2009 s 818; Planning & Environment Court Rules 2010 s 4; Uniform Civil Procedure Rules 1999 r 5.

PLANNING SCHEME:

PUBLICATIONS:

CASES APPLIED:

CASES CONSIDERED:

Townsville City Plan 2005

‘The centrality of jurisdictional error’, article by Hon JJ Spigelman AC, (2010) 21 PLR 77.

Emerald Developments (AUST) P/L v Minister for Environment, Local Government, Planning and Women [2006] QPELR 714; Westfield Management Ltd v Brisbane City Council [2003] QPELR 520; Minister for Immigration v Jia (2001) 205 CLR 507; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Craig v South Australia (1995) 184 CLR 163; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; SDW Projects v Gold Coast City Council [2007] QPELR 24; Central Equity Ltd v Gold Coast City Council [2007] QPELR 356; Newing v Silcock [2010] QPELR 692
Woolworths Limited v The Warehouse Group (Australia) Pty Ltd [2003] NSWLEC 31; Bon Accord Pty Ltd v Brisbane City Council (2008) 163 LGERA 288; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Lyons v Misty Morn Developments Pty Ltd [1998] QPELR 268; Brutone Pty Ltd v Townsville City Council & Ors [2009] QPEC 143

Dunlop v Woollahra Municipal Council [1975] 2 NSWLR 446; Maroochy Shire Council v Shadbolt & Anor [2007] QPELR 213; Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2009] NSWLEC 109; Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50; Puhlhofer & Anor v Hillingdon London Borough Council [1986] AC 484; Ebnerv Official Trustee in Bankruptcy (2000) 205 CLR 337; Smits & Anor v Roach & Ors (2006) 227 CLR 423; Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; Central Sawmilling No1 Pty Ltd v Queensland [2003] QCA 311; Goldtaper Pty Ltd v Berela Pty Ltd (unreported) BC 200004654, 03 February 2000; British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283; Webb v The Queen (1994) 181 CLR 41
McGovernv Ku-Ring-Gai Council [2008] NSWCA 209; Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; Kioa v West (1985) 159 CLR 550; R v Brisbane City Council; ex parte Read [1986] 2 Qd R 22; Lewiac Pty Ltd v Gold Coast City Council [1993] QPLR 160; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; NRMCA (QLD) Ltd v Andrew [1993] 2 Qd R 706; Mudie v Gainriver Pty Ltd [2002] 2 Qd R 53; Eschenko v Cummins [2000] QPELR 386; Parramatta City Council v Hale (1982) 47 LGRA 319; Broad v Brisbane City Council (1986) 2 Qd R 317; Rosswalmore Property Pty Ltd v Maroochy Shire Council [2009] QPELR 73; SZEJK v Minister for Immigration and Multi-cultural and Indigenous Affairs [2006] FCA 724; Yu Feng Pty Ltd v Ipswich City Council & Ors [2007] QPEC 125; R v The District Court; ex parte White (1966) 116 CLR 644; Woolworths Limited v The Warehouse Group (Australia) Pty Ltd [2003] NSWCA 270; Parramatta City Council v Pestrell (1972) 128 CLR 305; Lomas v Gold Coast City Council [2007] QPELR 539; Weightman v Gold Coast City Council [2003] 2 Qd R 441; Main Beach Progress Association v Gold Coast City Council & Anor [2008] QPELR 675; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Cox & Ors v Maroochy Shire Council & Ors [2006] QPELR 628; Grieves v Townsville City Council [2009] QPEC 142; Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273; Westfield Management Ltd v Pine Rivers Shire Council & Anor [2004] QPELR 337; Luke & Ors v Maroochy Shire Council & Anor [2003] QPELR 447; Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157; Di Marco v Brisbane City Council & Others [2006] QPEC 035

COUNSEL:

Ms T Fantin for the Applicants
R A Quirk for the Respondent
J D Houston for the Co-Respondents

SOLICITORS:

Stuart Watson Lawyers for the Applicants
Townsville City Council Legal Services for the Respondent
Connolly Suthers for the Co-Respondents

The Application

By an Originating Application filed on 17 December 2009 and since filed in amended form by leave (the "Originating Application") the applicants seek to overturn a decision made by the respondent ("the Council") on 15 October 2009 to approve a Development Application by the first co-respondent on behalf of the second co-respondents for a "Material Change of Use detached house - extensions and a preliminary approval for building work" ("the work") at the second co-respondent's home at 24 Yarrawonga Drive, Castle Hill ("the property"). The work involved the addition of one storey and expansion of a car parking area.

Legislation

The Development Application was made and determined under the now repealed Integrated Planning Act 1997 ("IPA") and was "code assessable". There is no right of appeal against a decision made on a code assessable application under IPA.

Whilst there was no requirement for public notification, the applicants nevertheless had discussions with and made numerous submissions to the respondent in a period commencing before the Development Application was made until shortly before the Decision Notice was issued.

The Declarations Sought

In the Amended Originating Application, the applicants sought declarations that the decision of the Council was invalid on the grounds that the Council:

1. Made 18 separate errors of fact, that amounted to a jurisdictional error (paragraphs 26 and 28);

2. Failed to consider or properly consider, relevant considerations: 12 sections and 6 definitions in the Townsville City Plan 2005 ("the Planning Scheme"), 11 letters by the applicants to Council, 5 reports, a Council Traffic Assessment and a letter of objection from another resident (paragraph 23);

3. Took into account irrelevant considerations (paragraphs 24 and 28);

4. Failed to apply certain provisions of IPA, namely ss 3.5.4, 3.5.13 and more particularly Specific Outcomes (paragraph 25);

5. Issued a Decision Notice that was not in the form required by IPA in that it failed to give reasons for the decision, including a statement of the sufficient planning grounds (paragraph 27);

6. Made a decision that was so unreasonable that no reasonable assessment manager could have made it, based on the "Wednesbury principle" (paragraphs 23-27, 29);

7. Erred in law (paragraph 30).

Preliminary Issues

At the commencement of the hearing two material preliminary issues were argued. The first was an application by the applicant for leave to further amend the Amended Originating Application. The second was an objection by the Respondent to the admission of a number of documents (“the disputed documents”).

I will deal with the Preliminary Issues first because – not surprisingly – their determination largely shaped the course of and content of the submissions on the substantive application.

Preliminary Issue 1: Application for leave to further amend the Amended Originating Application

The applicants applied for leave to further amend the Originating Application, primarily by the amendment of paragraph 22 and the addition of paragraphs 32 and 33 to the Amended Originating Application. The application was heard at the commencement of the trial on 14 March 2011.

I delivered an oral decision at the commencement of the second day of the trial and reserved these reasons to the Judgment.

For convenience I will deal with the three paragraphs separately and in reverse order.

Paragraph 33

“33.Further or alternatively, the Respondent's decision was invalid on the basis of a reasonable apprehension of bias on the part of the decision maker arising from:

a. The views expressed by the Director Planning and Economic Development to the First Co-Respondent about the Planning Scheme and proposed development during a pre-lodgement meeting or meetings.

b. The absence of any record of the pre-lodgement meeting;

c. The ownership by the Director Planning and Economic Development of vacant land at 5 Glamis Court, within 200 metres of the land the subject of the application, which constituted a conflict of interest;

d. The failure of the Director Planning and Economic Development to:

i. Disclose his ownership of the land; and

ii. Disqualify himself from the decision making process;

e.. The Respondent's provision to the First Co-Respondent on behalf of the Second Co-Respondents on 22 July 2009 of confidential correspondence from the Applicants to the Respondent dated 22 April 2009 and 14 May 2009, contrary to the Applicants' express instructions that it not be provided to the First or Second Co-Respondents.”

The critical elements of the allegations are:

(a) Firstly, in respect of 33 a. and b., there was one or more meetings between Council officers (including Mr. Licciardello) and the co-respondents prior to the lodgement of the Development Application where it is alleged assistance in the form of advice was given to the first co-respondent in respect of a number of matters the applicants contend are critical issues;

(b) Secondly, in respect of paragraphs 33 c. and d., it appears to be one of pre-judgment and reasonable apprehension of bias in the decision maker, one Mr. Licciardello who as the Director Planning and Economic Development held a regular and valid delegation from the Chief Executive to perform the function of decision-maker in respect of Development Applications, a function that he performed in respect of the subject development proposal; and

(c)Thirdly, in respect of paragraph 33 e., the applicants had provided letters to the Council prior to the lodgement of the Development Application which they explicitly requested not be provided by way of copy to the Co-Respondents. The allegation is that the Council did so and thereby breached the confidentiality inherent in the provision of the documents to the Council by the Applicants. The documents were in fact provided to the First Co-Respondent who subsequently made the Development Application on behalf of the Second Co-Respondents.

Miss Fantin for the Applicants submitted that the meaning and relief sought inherent in paragraph 33 could be construed from existing documents, reflected the philosophy expressed in rule 4 of the Planning & Environment Court Rules 2010 and that no other evidence was required to further substantiate the allegations.

Subparagraphs 33 a. and b.

The Applicants take issue in paragraphs 33 a. and b. with the alleged involvement of Mr. Licciardello in pre-lodgement meetings with the Co-Respondents, both at the Council premises and on-site. Ms Fantin referred to the similarity of expression about the issue of height, arising from the meetings and repeated in the Development Application, particularly at page 4 of 7 of the Planning Report by the First Co-Respondent, in reference to ‘District Code 2 - Townsville Inner Suburbs’ and ‘Table 1 Building Height’, where it was asserted that the proposal for ‘two storeys over under croft’ was allowed and thus said to constitute three storeys.

Under the column stating ‘Does the proposal comply?’ is written:

‘In respect to the number of floors: no: when viewed from the north. When viewed from the south the project is fully compliant. In respect to the height above ground: yes: Overall we submit the superior control is height - not the number of floors contained in the envelope: the project does not intrude on the 8.5m guideline’.

The applicants submitted that the critical statement is the expression ‘superior control’ (which I have underlined in the statement above). It is said that this was an expression specifically used by Mr. Licciardello in a meeting on-site with the Co-Respondents and that it has been repeated back, in effect to him, in the Development Application. In other words, it is said that Mr Licciardello expressed a view about "superior control" and that this is a basis for the allegation of pre-judgment of the Development Application.

Whilst there was some inconsistency in responses from the Council about whether there were minutes of the pre-lodgement meetings, at the end of the day there appears to be no such minutes, although there is a diary note by the First Co-Respondent which refers to a meeting with Mr. Licciardello at the site and at the Council on 24 November 2008.

In exhibit 4, a letter dated 7 March 2011 from the Co-Respondents to the Applicants, particulars were sought of paragraph 33a, with respect to pre-lodgement meetings, the places which they occurred, the subject matter and the views said to be expressed by Mr Licciardello. No response was made to that letter prior to trial.

Mr Licciardello in an affidavit filed on 27 October 2010 denied having any formal pre-lodgment conversations with the first co-respondent. He could not recall a conversation with anyone from the first co-respondent about the Development Application. There is evidence that there were discussions as described by the applicants about the Development Application. Mr Licciardello may have been involved in those. Whether they are properly described as ‘meetings’ is a moot point but at the end of the day I do not think they can be characterised as anything other than information exchange opportunities. They do not appear to me to have been formal meetings or discussions, which may account for the lack of any documented record of the discussions. It seems that Council officers attended the site to enquire about and to clarify issues raised by the applicants, particularly about the number of storeys and the existence of a partial level below the undercroft which had an access at lower ground level through a narrow doorway in a brick wall. However, I do not consider that any of these events could constitute ‘pre-judgment’ by Council, Council officers or Mr. Licciardello, as a matter of law. Even if the expression referred to above, which the applicants rely on to demonstrate ‘pre-judgment’, was used and repeated by the first co-respondent as submitted by Ms Fantin, I do not think that pre-judgment is thereby made out. It may establish (as may the diarised meeting entry) that informal discussions took place, but it cannot be elevated to mean that which the applicants contend for.

Subparagraphs 33 c. and d.

The ownership of the vacant land is an issue that the Applicants contended was by its very nature and its non-disclosure by Mr. Licciardello, to be sufficient without more to give rise to reasonable apprehension of bias. There is no doubt that Mr. Licciardello owned the vacant land, as the Applicants have pleaded. The 200 metres is measured ‘as the crow flies’. It appears to be some distance away on a lower level of Yarrawonga with a quite different compass aspect and oversight of the city.

The Co-Respondents and Respondent referred to a number of issues said to be relevant to the allegations and the issue of leave to further amend with respect to these subparagraphs.

Firstly, they refer to delay in making the application to further amend the Amended Originating Application. It is contended that there was no good reason why the allegation could not have been made at an earlier time. The applicants submitted that they were waiting for disclosure to be completed. Mr Houston referred me to other allegations in the pleadings that according to correspondence were made without the disclosure of relevant materials being available but that the applicants did not seem to be deterred from making those allegations.

I should say, however, that the nature of the allegations in this case, particularly with respect to subparagraphs c. and d., are very serious allegations that would customarily not be made without proper evidence being available.

Secondly, the allegation of apprehended bias had previously been made in the Originating Application but was abandoned in what is said to be a deliberate manner and only now on the eve of trial sought to be resurrected.

Thirdly, it was submitted that reasons for the late application for amendment has not been properly made and the delay is not explained.

Fourthly, the ownership of the vacant site by Mr Licciardello has been within the knowledge of the Applicants since early in the proceedings: See Mr Watson’s letter dated 20 August 2010, for example.

Fifthly, the late articulation of the ‘connection’ or ‘specificity’ of the allegation in sub-paragraph c and d - which occurred in the course of Miss Fantin's Reply in oral submissions on the first day of the trial - is said to be a further ground for refusal of the application for leave to amend.

The allegation made against Mr Licciardello is a very serious one. It is clearly an allegation that he might be considered by an objective and independent observer to have sought to indirectly obtain some personal or financial gain or benefit by approving the Development Application, in the context of an improvement in the value or saleability of his land or by improving the building viability of any structure that might be erected on his land in the future.

The allegations are akin to making a serious allegation of fraud. By analogy with Rule 150 UCPR, allegations of this nature must be pleaded with specific particularity. This was not done in his case and is still not so pleaded even though the specific allegation was finally articulated in very brief terms in the oral Reply submission.

Further, in Exhibit 3 - a letter dated 23 August 2010, from the Co-Respondents to the Applicants - the allegation against Mr. Licciardello was raised in the following terms:

"We note that your letter to the solicitors for the Respondent purports to reserve your 'client's rights in relation to an allegation of apprehended bias on the part of Mr Licciardello'. That purported reservation seems to be consistent with the impression created by the request for documents in section 8 of your letter - that you are 'fishing' for documents which are not directly relevant to any issue in the proceedings, with the intent of possibly seeking to raise a new issue. In fact, we note that at one stage during the course of notifying your clients' proposed amendments to their Originating Application filed on 17 December 2010, you raised allegations of lack of impartiality, by reference to Mr Licciardello, but that the Amended Originating Application, which your clients sought and obtained leave to file, did not contain any such allegations. The documents and information you have referred to in section 8 of your letter to the solicitors for the Respondent were available at the time you gave notice of the Amended Originating Application and your clients clearly made a decision not to include any allegations of lack of impartiality. We see no basis for any such allegations being raised now and we certainly see no basis for you seeking disclosure of documents, on the basis your clients might possibly, some time in the future, seek the leave of the Court to raise such allegations."

That letter is somewhat prescient in the sense that what was foreshadowed as a possible event has in fact come to fruition in the form of the application to further amend the Amended Originating Application.

Ms Fantin's submission, in summary, was that the paragraph 33 c. and d. were explicable on their face, that no particularisation was required or indeed necessary and that it was not for the Applicants to give details of meetings which they had no involvement in, such information being clearly within the knowledge of the Council and the Co-Respondents. I must say, the latter assertion has some merit. However, the assertions about the adequacy of the pleading do not, for a number of reasons which I shall shortly expand upon.

Subparagraph e.

The letter dated 22 April 2009 from Mr and Mrs Glastonbury to the Council CEO expresses the following in the penultimate paragraph:

“Our authorisation is required for access or disclosure of this letter or it’s content to the landowners of 24 Yarrawonga Drive, Castle Hill or to persons acting on their behalf.”

The letter dated 14 May 2009 from Mr Shlegeris to Mr Licciardello was marked ‘PRIVATE & CONFIDENTIAL’ and the penultimate paragraph is expressed as follows:

"I have marked this letter confidential because I do not give you permission to give access to this letter to the owners of 24 Yarrawonga Drive or to anyone acting on their behalf."

Number 24 Yarrawonga Drive is the subject land owned by the Second Co-Respondents.

However, Mr Houston for the Co-Respondents referred to there being an inconsistency in the allegation of breach of confidentiality by ‘unauthorised disclosure’ made by the Applicants because the Applicants had pleaded that the letters were part of the common material and had asked Council in fact to consider the letters as part of the common material.

In paragraph 23 b of the Amended Originating Application it was asserted that:

"23. In reaching its conclusion to approve the Development Application, the Respondent failed to consider, or to consider properly, relevant considerations including:

b. The documents provided to it by the Applicants and their solicitors and consultants, which documents form part of the common material being material about the application that the Assessment Manager received in the first 3 stages of IDAS or alternatively, which documents were matters the Respondent was entitled to have regard to for the purposes of s 3.5.13(3)(a) and (4) of the IPA in deciding the application."

In the Applicants' response to the Co-Respondents' request for further and better particulars, dated 22 June 2010 - wherein the Co-Respondents had requested particulars of the facts, matters and circumstances relied upon to support the allegation that the conclusion regarding set back at the site, contended in paragraph 26. l. of the amended Originating Application, was incorrect, the Applicants responded by referring to "…the documents submitted to the Respondent by the Applicants were (sic) letters and emails dated 22 April, 14 May, 9 August, 16 August, 2 September 2009", inter alia, the first two mentioned letters and emails being the subject correspondence sent to the Council by each of the Co-Respondents.

Further, the solicitor for the Applicants wrote to the Council on 20 July 2009, attaching Statutory Declarations by the Second Co-Respondent in relation to the process and outcomes of consultation with respect to the Development Proposal, and on 22 July 2009 the solicitor for the Applicants wrote to the Council seeking confirmation that it had received that correspondence and that a copy had been placed on the Development Assessment file for the subject property. Hence the disclosure of the two letters followed the date of that correspondence.

There is unquestionably a significant inconsistency between the allegation of a breach of confidentiality on the one hand and the desire of the Co-Respondents through pleadings and specific requests, to have the views expressed in the letters - that concern the height and number of storeys of the proposed development, both matters that the applicants’ regard as critical issues - taken into account in the IDAS process.

Authorities

In so far as alleged prejudgment or apprehended bias are concerned, Hayne J in Minister for Immigration v Jia (2001) 205 CLR 507 wrote at [177]:

"The contention that a decision maker has pre-judged a question, or that there is a reasonable apprehension that the decision maker may have done so, contains a number of separate elements which should be identified. When that is done, it is apparent that there can be no automatic application of rules developed in the context of judicial decision making to administrative decisions".

The test of "reasonable apprehension of bias" is to be objectively applied. Rather than asking what "was done", for example, "the question is one of possibility (real and not remote), not probability": per Hayne J at [184], referring to the majority judgment of which he was a part, in Ebnerv Official Trustee in Bankruptcy (2000) 205 CLR 337, at [7].

His Honour identified at [185] ‘several distinct elements’: firstly, that the decision maker has an opinion on a relevant aspect of the matter in issue; secondly, that the decision maker will apply that opinion to the matter in issue; thirdly, that the decision maker will do so without consideration of the facts and circumstances of the particular case; and fourthly that "there is an assumption that the question which is said to have been pre-judged is one which should be considered afresh in relation to the particular case".

His Honour observed at [186] that it does not necessarily follow that evidence will be disregarded even if a Judge had preconceived opinions, in the context of both allegations of bias and apprehended bias through pre-judgment.

The "relevant test" in respect of "apprehended bias" is stated in Ebner at [8]. There are two steps: firstly, the identification of what is said might lead a decision-maker to decide a case other than on its legal and factual merits. The second is the necessity for "an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision-making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed."

See also Smits v Roach (2006) 227 CLR 423 at [50]-[54]. In Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 the Court considered the issue of reasonable apprehended bias on the part of a Minister of State. The implication in that case is that in such respects there is perhaps a lower measure applied than with respect to other decision-makers. The persons whose conduct or status is said to have been the subject of the allegation of apprehended bias were mid-level public servants or advisers to the Minister: [50]. The test is not a rigid formula. The measure may differ as between a judicial decision maker and an administrative decision maker: [70].

Counsel for the Council and the Co-Respondents submitted that paragraph 33 was not explicable in its terms or on it’s face and that it did not give sufficient particularity to enable them to deduce the case they were to meet.

As I have observed, the second of the steps in Ebner is the ‘logical connection’ that must be made between the matter alleged to constitute apprehended bias or pre-judgment and the assumed failure to judge the matter in issue on its merits.

Whilst the assertion by counsel for the Applicants was that nothing more than the bare pleading was required or necessary, as I have said Ms Fantin did in the course of her oral Reply in submissions, for the first time it is said, in fact particularise paragraphs 33c and d. My note is as follows:

"Ownership of land, discussions by Licciardello with Co-Respondents before application, two documents (confidential) provided to the Co-Respondent, decision made immediately (that is on the same day as the Planning Report was provided to Licciardello); the test is: what would be the overall impression to a hypothetical observer?"

and

"The connection is solely what Licciardello might indirectly gain from approval, for his land, and what benefit might accrue to him through his decision."

Lack of particularity in the proposed amendments, especially on the eve of or during the hearing, is a significant matter: Central Sawmilling No1 Pty Ltd v Queensland [2003] QCA 311 at [1] and [11]-[12]; and Goldtaper Pty Ltd v Berela Pty Ltd (unreported) BC 200004654, 03 February 2000 at [1].

In British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283, at [38], the Court referred to the “convenient frame of reference’ identified in Webb v The Queen (1994) 181 CLR 41, at 74 of categories of judicial officer compromise: namely, interest in the proceedings, conduct, association with others with an interest in the proceedings and knowledge of prejudicial or inadmissible extraneous information; and more specifically in British Tobacco at [104] about ‘pre-judgment’. At [139] the Court wrote:

“…It is the perception of the hypothetical observer that provides the yardstick. It is the public’s perception of neutrality with which the rule is concerned.”

Of course the latter case dealt with perception of the neutrality of a judicial officer.

In McGovernv Ku-Ring-Gai Council [2008] NSWCA 209 the test for reasonable apprehension of bias by pre-judgment was stated to be whether an independent observer might reasonably apprehend that the decision-maker might not be open to persuasion. It applies equally to statutory decision-makers as to judicial decision-makers. In the context of a Council, it is not applied to individuals but to the Council as a whole. Of course, the application in this is case directed to Licciardello as the person holding the decision-making delegation. However, unlike McGovern, in this case there was no issue of the exercise of a statutory power. It was a Code assessment process.

In Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411, a case dealing with judicial pre-judgment, a reasonable apprehension of bias was said to be one which might be held by a party or a member of the public who is both reasonable and informed. The knowledge ascribed to the fair-minded observer was not to be at the level of sophistication of a Judge, lawyer, specially educated or informed citizen, or a party involved in the decision-making process.

In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 Deane J confirmed that an administrative decision-maker, in particular a regulatory agency or local council, does not have to be free from prior involvement in a decision: his Honour wrote at p 90:

“Acquaintanceship with or preconceived views about a party of a kind which would create the appearance of disqualifying bias in a judge exercising the judicial power of a court of law may be permissible and unobjectionable in a statutory body which, while required to accord procedural fairness in the discharge of a particular function, is entrusted with other functions which necessitate a continuing relationship with those engaged in a particular industry.”

The existence of a common law duty of elected public officials to act in the execution of their statutory duties of office without bias or perception of bias was confirmed in the Land & Environment Court of New South Wales in Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2009] NSWLEC 109, at [176]-[177]. See also Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50.

The respondent relied on principle and rules in submitting that the matters alleged in paragraphs 33 were not "real issues" in the proceeding.

The "real" issues in the proceeding "refer to issues raised in the pleadings at the time of the application for leave to amend." The "real" issues may extend beyond the pleadings, but the relevant dispute or controversy must exist at the time of application: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.

The Applicant submitted Aon was in effect, a special case and distinguishable from the present application. In Aon, the leave to amend sought by the respondent was held to involve new claims against the defendant insurance broker, after the respondent had settled with the other defendants who were insurers. In this case Ms Fantin submitted that the amendments were explicable on their face, were part of the broader attack on the decision of Council and there had been documents in existence for a significant time prior to the application being made. That there may be several applications for leave to amend an Originating Application was not unusual (see Rackemann DCJ in Newing & Ors v Silcock & Ors [2010] QPEC 49) and Ms Fantin sought to distinguish Aon on that practical basis.

Conclusion on this preliminary issue

In the Planning & Environment Court Rules 2010 the overriding obligations of parties in Court are expressed in a statement of philosophy:

"4.Philosophy - Overriding Obligations of Parties in Court

(1) The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in proceedings at a minimum of expense.

(2) Accordingly, these rules are to be applied by the Court with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.

(3) In a proceeding in the Court, a party impliedly undertakes to the Court and to the other parties to proceed in an expeditious way."

See also the similar expression of philosophy in the context of obligations of parties in Court, referred to in Rule 5 Uniform Civil Procedure Rules 1999.

In my view, the allegations in paragraph 33 are made too late and against a background in which knowledge of the matters and evidence of them has been in existence for a considerable period of time. Indeed the specific allegation against Mr. Licciardello was clearly abandoned at an earlier stage of the pleadings and it is now on the eve of trial sought to be resurrected. His ownership of the land has been known to the applicants for some time. Nothing has changed in the way of evidence, it would seem. It is said that there is no new evidence to be relied on, beyond the existing documentation, in support of that allegation.

In respect of each of sub-paragraphs a., b., c. and d., the pleading was drawn with a distinct lack of particularity. The allegations against Mr Licciardello are very serious allegations akin to an allegation of fraud and they required very careful consideration before being made. In my view it is taking a long bow to make a connection between the mere ownership of a vacant block of land some distance from and in a different street from the proposed development where there is a different aspect and indeed where different considerations might apply to any application to construct a building upon it. Further, there is insufficient evidence to make out the allegation. The mere fact of ownership, contrary to what I was urged to accept by counsel for the Applicants, is not enough in my view to raise any reasonable apprehension of bias on the part of a fair minded observer having some knowledge of the facts and being apprised of the relevant circumstances.

The connection between the allegation and the feared outcome (in terms of the test in Ebner) was not articulated until part way through the hearing. The affidavit of Mr. Licciardello was not challenged in evidence. As I have observed, he denied the allegations about formal pre-lodgement discussions. Nor does it seem to me that this is an issue central to the Applicant's case. The fact of it being first raised then abandoned in the first amended pleading and then being sought to be raised again on the eve of trial seems to me to underline that conclusion. Finally, the allegation is a serious one. It is insufficient to simply raise it as a proposition in the pleading, which is what occurred here, without particularisation and merely upon what I understand was an expectation that the Court would simply infer apprehended bias from that proposition, without more. The authorities, however broadly expressed, do not support such a submission.

In my view, there are no or no sufficient grounds for the amendment to be granted.

Accordingly, I refused leave to further amend the Amended Originating Application in respect of paragraph 33 a. to d. inclusive.

Insofar as sub-paragraph e. is concerned, it refers to the letters provided pre-lodgement in confidence by the Co-Respondents to Council. There is an inconsistency in the manner in which those letters have been treated by the Applicants. Council did release the letters to the Co-Respondents but did so only after it had been asked to take the letters into account as, at least impliedly, part of the common material. It seems to me that the allegation is misconceived and whatever confidentiality may have been intended at the outset, it was waived in the course of correspondence by the Applicant's solicitors to the Council in respect of materials that they should take into account in their decision making process. Paragraph 33e is not able to succeed on the face of the documentary material which is the only evidence that I am being asked to rely upon.

Accordingly, I refused leave to further amend the Amended Originating Application in respect of paragraph 33 e.

Paragraph 32

"32. Further or alternatively, the Respondent's decision was invalid because it failed to give proper genuine and realistic consideration to the Development Application and the Applicants' submissions in that:

(a) The Respondent did not act by resolution of its Council laws, despite the Applicants' request to do so;

(b) The Respondent delegated its power to decide the application to its Chief Executive Officer who in turn delegated his power to the Director Planning and Economic Development;

(c) The Director Planning and Economic Development relied upon and adopted the findings and recommendations of a report by a Development Assessment Officer, dated 4 September 2009 but not finalised until 15 October 2009, which report was flawed;

(d) The Director Planning and Economic Development did not sign the Decision Notice."

It was submitted by the respondent and the co-respondents that this was a different way of characterising the same facts as alleged elsewhere in the pleadings. The Council submitted that the issue otherwise pleaded is one of lack of procedural fairness and not ‘improperly made resolution’, such as seemed to be the thrust of paragraph 32.

The applicant submitted that the decision-maker did not afford procedural fairness. Ms Fantin referred to an observation by Mason J in Kioa v West (1985) 159 CLR 550 (at 584-585) where his Honour wrote that the application and content of the doctrine of natural justice depended to a large degree on the construction of the statute and the circumstances of the case. Hence the applicant’s submission that the alleged controversial nature of the proposal necessitated the decision should have been made by Councillors by resolution rather than by a delegate.

She also submitted that because the Development Assessment Officer’s report was completed and approved by the delegate on the one day and was approved, on what she described as flawed findings and analysis of a junior Council officer, the Court should infer that there had been a failure to consider the matter properly. That submission might be construed to contend a matter of procedural unfairness. However, paragraph 32 c. seems to me to make a case of improperly made decision, which is something quite different it seems to me and has not otherwise been pleaded.

The delegation is regular and authorised. There can be no issue about this and indeed I do not now understand that there is one. In rhetorical terms, how can it be said in that circumstance that there is an issue of procedural unfairness because Council did not make the decision by resolution?

There is no evidence to support the allegation. It cannot be the case that because a person has a wish or expectation (in respect of which there is simply a request by the applicants in correspondence to Council) for an administrative function by a local authority to be performed in a particular way that the local authority is bound to do what is wished, expected or, as in this case, requested. The delegation is regular, authorised and apparently, in relative terms, long-standing. Council has done nothing exceptional in making the delegation and it has not been made specifically in respect to this Development Application.

I do not consider that leave should be granted where the paragraph seems to make a new basis of claim and there is no or no sufficient evidentiary support for it. It also comes too late, being sought on the eve of trial.

Accordingly, I refused leave to further amend the Amended Originating Application in respect of paragraph 32 a. and b.

In so far as paragraph c. and d. are concerned, it is difficult to determine what is meant by those sub-paragraphs or what remedy is sought. Nothing has been advanced by way of evidence that the fact that the Director Planning and Economic Development did not sign the Decision Notice in any way invalidates the Decision Notice. Further, the bare statement in sub-paragraph c. about the adoption of findings in a report dated on a certain date but not finalised until a date some five weeks or so later seems not to make any sense. I do not know what the issue is in that allegation and nor, according to their respective submissions, do counsel for the Council or the Co-Respondents.

The pleading otherwise deals with ‘deficiencies’, so described for present purposes, in the Development Assessment Officer’s report that are alleged to amount to ‘flaws’ in the assessment process and as facts. There are other parts of the pleading that deal with the Decision Notice in paragraph 22. A Request for further and better particulars of paragraph 32 d. was made by the Co-respondents. No response was given by the Applicants.

Hence these latter two matters are in other and more general terms already issues in the pleadings as they stand. I do not consider that there are proper or sufficient grounds to grant the application to amend in respect to sub-paragraphs c. and d.

Accordingly, I refused leave to further amend the Amended Originating Application in respect of paragraph 32 c. and d.

Paragraph 22

“22. On 15 October 2009 the Respondent issued the Decision Notice for MC09/0091 in respect of the development Application purporting to approve the development subject to conditions which decision was made:

a. by the respondent’s delegate, it’s director Planning and Economic Development;

b. in reliance upon the findings and recommendations in a report prepared by a Development Assessment officer dated 4 September 2009, which it adopted.”

The amendments in paragraph 22 are underlined. The amendment sought was described as being non-controversial. There was no new fact alleged. It was simply an assertion that the decision was made on the same day as the report was completed. I have already discussed the latter. The paragraph as amended was said to be connected to new paragraph 32. My refusal to give leave to amend in respect to paragraph 32 led the parties to agree that the amendment could be allowed on the basis that it did not extend to enlarge the pleading in respect of the new matters that had been agitated for in paragraph 32.

Accordingly, I granted leave to amend the pleading in terms of the amended paragraph 22 in the Further Amended Originating Application.

Other amendments

The application sought leave to amend in some other respects. These were not opposed. I do not need to refer specifically to them but they are non-controversial and it is appropriate in the circumstances to give the leave sought.

I gave leave to amend. The applicants were to file a Further Amended Originating Application in accordance with my ruling on this application.

Preliminary Issue 2: Objection to the admission of the disputed documents

The disputed documents are considered in two categories: firstly, some that were included in the bundle of agreed documents, (exhibit 5); and secondly some exhibits to an affidavit of the applicant's solicitor, Mr Watson filed on 17 February 2011.

The first category of documents

The documents are objected to by the Council on the ground of relevance in that they relate to ss 3.5.4(a) and (b), 3.5.9 and 3.5.11 of IPA (Impact Assessment); and as to whether they were part of the "common material", as that expression is defined in IPA.

Many of the documents comprise informal submissions, correspondence, reports and other documents relating to the communications, submissions and meetings that the applicants had with the Council and the co-respondents, prior to the lodgement of the Development Application and in the course of the preparation of the Development Assessment Officer's report which was ultimately approved by Council.

The issue really is whether the documents received informally rather than through some regulated process provided in IPA, are relevant and therefore available to be considered by me on the application.

I accept that there is a distinction between informal submissions made in respect of code assessments and "properly made submissions" that are made by submitters in the course of the process of an impact assessment under IPA. The latter, of course, have a very important consequence for the submitters: if an approval is made with which a submitter does not agree, the submitter has a right of appeal. An author of an informal submission (whether it is a letter, email, expert report or some other form of communication) has no such right.

Indeed, whilst the Council may receive informal submissions and even enter into discussions with the authors or investigate matters referred to in such documents, it is not "bound by" the documents or their content: hence the Council’s objection to certain of the documents in the bundle on the ground of relevance.

I agree that there is a distinction between a Council "receiving" a submission and a Council "accepting" such a submission. The legislation makes it clear that the mere receipt, in the physical sense, of a submission does not mean that the Council has "accepted" the contents thereof.

At the end of the day it is really a matter of weight. If the Development Assessment Officer took an informal submission into account, discussed it, negotiated it, dealt with it by referring it to other parties or sought third party assistance with some or all of its content, it is in my view necessary for the court to look at such informal submission, in whatever form it may have manifested, to understand the report.

Reports of planners and an officer of the Council charged with the duty of a Development Assessment Officer, is not a perfunctionary task. The compilation of a report is something which, as a matter of common sense occurs over a period of time, involves many aspects of consideration, consultation, and seeking of advice in the broad sense. If informal submissions are taken into account then the extent to which they may or may not have been accepted is a matter that is relevant to the court's consideration of an application of the kind made in this case. For example, one of the neighbours on the downhill side of the subject property (“Hinspeter”), sent a letter to Council which appears to have been considered by the Development Assessment Officer, even though Hinspeter did not ultimately join this proceeding as an applicant.

The Development Assessment Officer's report is replete with references to numerous documents or sources of information, beyond the material which might be characterised as being "formal documentation" relevant to the development proposal. By way of further example, the Council may take an issue such as the height of a building or its scale or bulk into account, but at the same time may not take into account views expressed in an informal submission about that issue.

The relevant documents in issue appear in the two volumes of the agreed bundle of documents (the word "agreed" is obviously qualified by this objection) at pages 2, 6 and 7, 122, 148, 422, 435 and 448. These documents are correspondence that form part of the ‘informal submissions’ or ‘representations’ that commenced prior to the lodgement of the Development Application and continued through the assessment period. Further, the directions order that I made last year refers in its terms to "agreement" about documents, but with the caveat that such agreement is made without admission.

The second category of documents

I do not need to say anything more about the documents exhibited to Mr Watson’s affidavit because they largely related to matters that I determined on the application for leave to further amend the Amended Originating Application and in respect of the relevant parts of the amendments sought to be made where I refused leave. Hence this category of documents is no longer relevant.

There were two documents which did not quite fall into that category, but they were not documents that, on any appreciation of the meaning of "common material", would be relevant for my consideration. I also excluded them. Hence this issue is limited to the documents that I have identified and which form part of the agreed bundle of documents in exhibit 5.

The “common material”

In the applicant's outline of submissions under the heading "Whether the applicants' submissions form part of the 'common material'", Ms Fantin referred to the documents in issue and submitted:

"54. The documents provided to the respondent by the applicants, their solicitors and consultants and the objections from others, all form part of the "common material" (as defined in IPA schedule 10). That is, they were documents about the application that the assessment manager received in the first 3 stages of the IDAS, or alternatively, were documents the respondent was entitled to have regard to for the purposes of s 3.5.13(3)(a) and (4) IPA in deciding the application.

55. It is clear from the respondent's communications that it did, to an extent, have regard to the applicants' submissions and the submissions of other objectors. The applicants submit that the respondent failed to construe properly that material and to give it adequate weight.

56. The other parties contend that the documents received from the applicants, their solicitors and consultants did not form part of the "common material" at all and was not material that it was entitled to have regard to. Alternatively, they say that the respondent did consider the applicants' documents properly.

57. A submission lodged in response to a code assessable application can form part of the "common material" against which the development application must be assessed."

In Westfield Management Ltd v Brisbane City Council [2003] QPELR 520 the following question was posed for consideration by the Court: what materials should the Court look at, when an attack is made on the decision itself? Should the Court look just at the actual decision or should it look at the things which it took into account - such as the town planner's report? Judge Brabazon QC referred to Dunlop v Woollahra Municipal Council [1975] 2 NSWLR 446 wherein the court wrote (at 484) that:

"in scrutinizing the Council's actions, I should have regard, not only to the terms of the resolutions passed by Council, but to the history of the consideration of the land in question, and of the reports to Council by its officers and committees which were before the Council would have made its decisions"

In this case the decision was made by the delegate pursuant to a valid and regular authority from the CEO. The principle applies equally to him, as it did to the Council in Dunlop. He had the planning report. It referred to materials that the applicant submits should also be considered by me, even if in the form of pre-lodgement correspondence or meeting records and in formal submissions. This is particularly relevant where it is contended that the report would be difficult to understand if such consideration was not made.

Hence it is not simply the "formal processes" that inform the court in an application such as this. It is also the "known facts" which influenced the final decision: R v Brisbane City Council; ex parte Read [1986] 2 Qd R 22.

The IPA is akin to a codified process for planning assessment, described by the Chief Justice in Emerald Developments (AUST) P/L v Minister for Environment, Local Government, Planning and Women [2006] QPELR 714 at [22], as a "tightly defined regime set up by this legislation, which descends to very particular prescription of what is and is not relevant, and what may be or may not be done."

The Chief Justice wrote, at [30]:

"But through s 3.5.4, the legislature has been at pains to prescribe, in a limiting way, the only matters which may be taken into account - as relevant for this application, the codes (and the "common material") with the codes embracing, for present purposes, the IPA itself."

In Maroochy Shire Council v Shadbolt & Anor [2007] QPELR 213 the assessment manager took into account information from a person making a submission in a code assessable application. It was implicit that what the assessment manager received was then considered to be part of the "common material." The Court said at [16] - [19] that it was not entitled to take into account information provided later, which was not before the decision maker/assessment manager, but was entitled to consider the material provided to the assessment manager by the objector, the author of the submission, during the decision making period.

In Schedule 10 of IPA (the definitions), "common material" is defined:

""common material" for a development application means -

(a) all the material about the application the assessment manager has received in the first 3 stages of IDAS, including any concurrence agency requirements, advice agency recommendations and contents of submissions that have been accepted by the assessment manager; and

(b) if a development approval for the development has not lapsed, the approval; and

(c) an infrastructure agreement applicable to the land, the subject of the application."

In the present case there is no doubt at all that the Development Assessment Officer took into account a large volume of informal submissions, in the broad sense of that word, in the course of the analysis and consideration of the Development Application and the preparation of the report which ultimately went to the decision maker. In that sense it is clear that the informal material that is the subject of objection by the Council and which is identified in these reasons, was "accepted", as distinct from merely being received, by the officer responsible for the preparation of the report. The extent to which the contents of such documents were taken into account is not relevant to this decision. The simple fact is that the documents objected to in my view are part of the "common material", are admissible on this hearing and should be considered by me within the limits that apply to the nature of the application which I am required to consider.

Accordingly, at the commencement of the second day of the trial I made a ruling to the above effect and reserved my reasons to this judgment.

The substantive issues

I will now deal with the substantive issues in the application. There was, of course, no evidence given in the proceeding and I received written submissions and counsel made supplementary oral submissions.

The Development Application was code assessable. That mode of assessment was triggered by the fact that the proposed development did not comply with height requirements in the planning scheme. That issue appears to have been the main concern of the applicants throughout the course of their representations to the respondent.

Background

The subject dwelling is in Yarrawonga on Castle Hill in Townsville. The applicant's dwellings sit above the subject dwelling on the slope of the hill and that of Mr Glastonbury commands broad views across part of the city and Cleveland Bay. The proposed development will interrupt that view by the elevation of the roof line of the subject dwelling. Hence this is really a case about a loss of some panoramic "views" by the applicants. In Queensland there is no proprietary right to a "view" and simple interference with one is not a basis for intervention per se.

Whilst there are a number of factual components to the applicant's case, the primary one - however it may be dressed-up - is "height": that is, the number of "storeys" in the subject dwelling if the proposed development proceeds.

There were changes to the plans in the course of the Assessment process. I have included three drawings (on the following pages) that show different aspects of the proposal and demonstrate in a visual way the issues about height and ‘storeys’, setbacks and parking (it is irrelevant for my purposes whether they are the first or last plans). The ‘existing east elevation’ drawing – that immediately follows this paragraph - shows the door to the under-croft or sub-floor space (identified by an arrow), which is a contentious issue between the parties and the subject of some discussion in the judgment.

Integrated Planning Act 1997: Relevant Code Assessment provisions

The Integrated Planning Act 1997 (“IPA”) applies to this Development Application. The IPA provisions apply, despite the repeal of the Act, by virtue of s 818 Sustainable Planning Act 2009.

One of the purposes IPA is to seek to achieve ecological sustainability by -

"1.2.1 Purpose of Act

(b) managing the process by which development occurs."

“1.2.2 Advancing Act's Purpose

(1) If, under this Act, a function or power is conferred on an entity, the entity must -

(a) unless paragraph (b) or (c) applies - perform the function or exercise the power in a way that advances this Act's purpose.

(2) Subsection (1) does not apply to code assessment under this Act.”

“1.2.3 What advancing this Act's purpose includes

(1) Advancing this Act's purpose includes -

(f) providing opportunities for community involvement in decision making."

The Development Application in this case required, as I have observed, Code Assessment. The code assessment process, so far as is relevant, is as follows:

"3.5.4 Code Assessment

(1) This section applies to any part of the application requiring Code Assessment.

(2) The assessment manager must assess the part of the application only against -

(a) applicable codes (other than concurrence agency codes the assessment manager does not apply); and

(b) subject to paragraph (a) - the common material…”

“3.5.13 Decision if application requires code assessment

(1) This section applies to any part of the application requiring code assessment.

(2) The assessment manager must approve the application that the assessment manager is satisfied the application complies with all applicable codes whether or not conditions are required for the development to comply with the codes.

(3) Subject to subsection (2), the assessment manager’s decision may conflict with an applicable code only if there are sufficient grounds to justify the decision despite the conflict, having regard to –

(a) the purpose of the code;

(4) However, if the decision is made under subsection (3)(a) and the assessment is against a code and a planning scheme – the assessment manger’s decision must not compromise the achievement of the desired environmental outcomes for the planning scheme area.”

Hence in section 3.5.13 there are four principal considerations: firstly, the application must be approved if the Council is satisfied that the application complies with all the applicable codes; secondly, that the Council's decision may conflict with an applicable code only if there are sufficient grounds to justify the decision despite the conflict, having regard to: thirdly, the purpose of the code; and fourthly, the Council's decision must not compromise the achievement of the desired environmental outcomes in the planning scheme.

“3.5.15 Decision notice

(1) The assessment manager must give written notice of the decision in the approved form (the decision notice) to –

(a) the applicant; and

…

(2) The decision notice must be given within 5 business days after the day the decision is made and must state the following –

…

(k) whether the assessment manager considers the assessment managers decision conflicts with any of the following if relevant to its assessment under s.3.5.4 … –

(i) applicable codes…….;

(ii) the planning scheme……;

(l) if the assessment manager is satisfied the decision conflicts with any of the matters stated in paragraph (k) – the reasons for the decision, including a statement of the sufficient grounds mentioned in section 3.5.13(3).

Declarations and orders may be made by the court:

"4.1.21 Court may make declarations

(1) Any person may bring proceedings in the court for a declaration about -

(a) a matter done, to be done, or that should have been done for this Act, other than a matter for chapter 3, part 6, division 2; and

(b) the construction of this Act and planning instruments and master plans under this Act; and

……

(5) The court has jurisdiction to hear and decide a proceeding for a declaration about a matter mentioned in subsection (1)

……"

"4.1.22 Court make orders about declarations

The Court may also make an order about a declaration made under section 4.1.21."

Sections 3.5.9 and 3.5.11 are referred to in some of the disputed documents. However, they deal with impact assessment in the IDAS process, and not code assessment and hence are not relevant.

The Nature of this proceeding

This proceeding is by way of Originating Application. The Court is not engaged in a merit review of the Development Application. It has no jurisdiction to do so. The proceeding is not an appeal. It is akin to a judicial review. The Court is only concerned with the legality of the decision made by Council.

In Puhlhofer & Anor v Hillingdon London Borough Council [1986] AC 484, the Court dealt with an application for accommodation under relevant legislation pursuant to a Council's (the housing Authority) duty to provide accommodation for homeless persons.

Lord Brightman (at 518) stated the following principle:

"My Lords, I am troubled that the prolific use of judicial review for the purpose of challenging the performance by local authorities of their functions under the Act of 1977. Parliament intended the local authority to the judge of fact. The Act abounds with the formula when, or if, the housing authority is satisfied as to this, or that, or have reason to believe susceptible to judicial review where they have misconstrued the Act, or abused their powers or otherwise acted perversely, I think that great restraint should be exercised in giving leave to proceed by judicial review. The plight of the homeless is a desperate one, and the plight of the applicants in the present case commands the deepest sympathy, but it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground upon which the Courts will review the exercise of an administrative discretion is abusive power - e.g. bad faith, a mistake in construing the limits of power, the procedural irregularity of unreasonableness in the Wednesbury sense - unreasonableness verging on an absurdity … where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power, save in case where it is obvious that the public body, consciously or unconsciously are acting perversely."

The applicants bear the onus of proof on the balance of probabilities: Eschenko v Cummins [2000] QPELR 386 at [20] wherein reference was made to Parramatta City Council v Hale (1982) 47 LGRA 319 at 335, 393.

The Court's discretion in respect to making declarations or making orders about declarations is very broad.

The Court is required to consider whether, in the circumstances of this application, approval was validly made: Westfield Management; and Eschenko (both supra).

In Westfield Management, Brabazon QC DCJ said (at para 57):

"This Court is not a planning authority. It has no power to set aside the decision of Council and replace it with its own opinion. It can only set aside the decision of Council if that is a result compelled by law. Usually, if a decision is set aside, the matter will be referred back to counsel for further consideration, according to law. In very rare cases, where the end result is inevitable, there can be a direction to decide the application as the Court directs. See Aronson & Dyer, Judicial Review of Administrative Action (2nd ed) 2000 at p 134."

In Eschenko, following paragraph [20] with respect to onus of proof, the Court wrote:

"[21] 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 & 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 with the authority to do that thing as expressed by the Act to be dependent on that person reaching a specified state of satisfaction. This is not 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.'

[22] 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 & 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 in reviewing the exercise of an administrative discretion was considered by Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-41

"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 KB 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 were required to be taken into account and exercising the statutory power … 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 whereas 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'. This ground of review was considered by Lord Green M.R. in Wednesbury Corporation (46), in which His Lordship said that it would only be made out if it was shown that the decision was so unreasonable that no reasonable person could have come to it."

The onus of proof in this proceeding is, as I have said, borne by the applicants. If they are to succeed in establishing that the decision was "unreasonable" they would have to show that there was an overwhelming case of unreasonableness, or that the decision was "indefensible" or "so absurd that no sensible person could ever dream that it lay within the powers of the authority": Lord Green in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

I have referred to a passage from the judgment of Skoien SJDC in Lyons v Misty Morn Developments (supra). His Honour had continued in his judgment by referring to Parramatta City Council v Pestrell (1972) 128 CLR 305 (at 323), per Menzies J:

"There is, however, a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man; the latter is 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 that the opinion is expressed be one reasonably open to the council. Whether it is sound or not is not a question for decision for the Court."

See also Lomas v Gold Coast City Council [2007] QPELR 539 with respect to delegated authority and a decision of a council that was vitiated by failure to take into account relevant considerations.

The Scope of the Judicial Discretion

The Court has an unfettered discretion: s4.1.21 (5) IPA and Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339. In Woolworths Limited v The Warehouse Group (Australia) Pty Ltd [2003] NSWLEC 31 at [21] Lloyd J wrote:

"The public detriment is not confined to physical or economic harm. It includes the broader interest in securing obedience to the planning laws. Unless restrained, a breach in one case leads to breaches in others and to a general feeling that the law is being ignored when breached by those who persistently flout it. In such a situation, the applicant in the present case, Woolworths Limited, would be justified in believing that whilst it must itself comply with the planning laws, others do not have to comply - there would no longer be a level playing field, upon which fair competition relies."

Statements to similar effect were made in the appeal in that case (Woolworths Limited v The Warehouse Group (Australia) Pty Ltd [2003] NSWCA 270) where the considerable importance of planning law was noted as was the effect of continuing breaches by the appellant nullifying the relevant zoning in the planning scheme. The Court concluded that business must be conducted in accordance with the relevant zoning.

The discretionary remedy of a declaration is similar to the equitable remedy of injunction. Hence the approach to the grant of discretionary relief in both instances is similar: Lewiac Pty Ltd v Gold Coast City Council [1993] QPLR 160, 179-180. The principles relevant to the exercise of the Court's discretion can be distilled from a number of collective authorities including Warringah Shire (supra); NRMCA (QLD) Ltd v Andrew [1993] 2 Qd R 706 at 712-713 and Mudie v Gainriver Pty Ltd [2002] 2 Qd R 53 at 58-59.

Mr Quirk for the respondent helpfully summarised these principles in his written submission and it is worth setting it out here:

"(a) The discretionary power is a wide one.

(b) It is undesirable to attempt a catalogue or classify the circumstances that may enliven the discretion by drawing on previous decisions. However, with that warning in mind, previous decisions may be instructive and helpful in achieving a generally consistent approach.

(c) Declaratory relief seeking to uphold planning provisions relates not to a private right but, rather, to a public duty imposed by an Act of the Parliament, by which the Parliament has expressed itself on the public interest that exists in the orderly development and use of the environment. In the normal case, there is a legislative purpose of upholding the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid. These factors militate in favour of exercising the discretion to grant relief.

(d) It is only in this sense that "special" circumstances need to be established to secure a favourable exercise of the discretion. This does not arise from the language of the Act but from the intention of the Act to normally require those that are concerned with development to comply with it. Otherwise, if unlawful exemptions became a frequent occurrence, the equal and orderly enforcement of the Act would be undermined.

(e) Where a private applicant applies, the Court has a wide discretion to grant a refute relief and is not constrained by any rule that it must enjoin illegality unless special circumstances exist.

(f) Where an application is made by the Attorney General, or a council as the proper guardians of public rights, the Court is less likely to deny equitable relief than in litigation between private citizens. Their interest is deemed to be protective and beneficial rather than private or pecuniary. The Courts will, however, be alert to instances of insensitive and unthinking administration.

(g) Where relief is sought against a static development, which can only be remedied at great cost or inconvenience, the discretion may, in the normal case, be more readily exercised against the granting of relief than where what is involved is a continuing breach by conduct which could quite easily be modified to bring it into compliance with the law. This is a reflection of the balance between the public interest in equal compliance with the law and the degree of irremediability (sic) occasioned by the breach and the expense or inconvenience which would follow from the law's enforcement. It is not a hard and fast exception. The discretion still must be exercised in each case. A lack of static development is not a reason to refuse relief.

(h) The Court's discretion allows it to soften, according to the justice of particular circumstances, the application of rules which, though correct in general, may produce an unjust result. Sometimes softening may be achieved by postponing the effect of relief.

(i) On appeal to the Court of Appeal, due regard will be had to the discretion of the judges of the Court not only because of the well- known principles relating to discretionary decisions by trial Courts, but also because the Parliament has established a specialist Court with an exclusive jurisdiction.

(j) The length of time since when the development occurred. Lengthy delay, obviously, militates against the grant of relief.

(k) The existence, circumstances, timing and extent of complaint in the locality are relevant.

(l) Whether any of the complaints and/or the proceedings would give rise to commercial advantage militates against the grant of relief.

(m) Whether the council only became involved as an applicant as a result of the initiation of a complaint and/or proceeding by someone who would gain commercial advantage.

(n) Whether there was a hazard to the environment.

(o) Whether the controls adopted by the respondents were reliable.

(p) Whether the breach caused any public damage or danger or possibility thereof.

(q) Whether the development caused any damage or danger since it had been operating.

(r) How the breaches arose, their extent, whether they were technical breaches. This includes whether the contraventions were a means of private gain.

(s) Whether the respondent(s) was deliberately flouting the law.

(t) All matters personal to the respondent(s), including hardship and cost.

(u) All matters personal to the other parties, including their interest in the matter, whether any of them have acted unlawfully, their awareness of the development, their knowledge of and participation in development processes, and how long they had been aware of the breach and their delay in commencing proceedings.

(v) The effect, including hardship, on non-parties.

(w) How long the respondent(s) had known of the breach/alleged breach."

The Applicants’ Pleadings

The grounds or issues relied upon by the applicants are not necessarily clearly reflected in the pleading: that is, it is a little difficult to identify in the pleadings jurisdictional error. I have already summarised these at [4] under the heading ‘The Declarations Sought’). In any event, the thrust of the application by reference to the Amended Originating Application, is as follows:

Paragraphs 23 & 26 allege:

· Failure to consider or properly consider:

- 12 sections and 6 definitions in the planning scheme

- 11 letters from the applicants to the respondent

- 5 reports

- a council traffic assessment report

- a letter from another resident expressing an objection

Mr Quirk said that in so far as the assessment report was concerned, it was not a proper approach to narrowly construe the report. The development application was in fact comprehensively assessed.

Co-Respondents’ submissions

The co-respondent answered the applicants' allegations of invalidity by reference, amongst other things, to the town planning considerations of height, set back, amenity and character, traffic and parking and the statement of reasons and sufficient grounds.

Specific reference was made to the following with respect to height:

· SO1(a) District Code 2 - non-protection of visual integrity of ridge lines - four storeys - greater than 10 metres and towards the front of the house where the distance above natural ground level is greatest.

· SO2 District Code 2 - as above and also an allegation of inconsistency with preferred character and amenity of the precinct, there being no terracing or stepping and a conspicuous protrusion.

· PS2.1 for SO2 - higher than the 8.5 metres in Table 1.

· Definition of storey (supra).

It was the applicants’ submission that the taking into account of irrelevant considerations had led to error. Mr Houston submitted that having noted all of that, nevertheless the applicants' pleading sought relief based on the Wednesbury unreasonableness principle.

Mr Houston said that there was no issue about non-compliance with PS2.1 of SO2. He submitted that the space under the east side of the house (referred to as an under-croft by some) was thoroughly dealt with in the "representations" by the applicants with the respondent, who consulted Mr Bruschi for advice, there being no definition of "floor" in the planning scheme. Even if a "space" is a storey, it was a technicality and of itself does not impact on "height" considerations.

Mr Houston submitted that the issue about setbacks had been also thoroughly canvassed in the representations by the applicants to the respondent. With respect to amenity and character, they too were amply canvassed and considered in the representations. With respect to traffic and parking, the allegation was a failure to give weight to the respondent's traffic engineer and the applicants' consultant traffic engineer as well as adjoining neighbours' concerns. However Mr Houston submitted that there was sufficient material for the respondent to consider in addition to the representations. The issue had been dealt with by the imposition of a condition or conditions. He said that the definition of a probable solution is "… a possible means by which the applicable specific outcome in a city plan code can be met". Hence, he submitted, the conditions that were made to the approval in that aspect.

He said so far as statement of reasons and sufficient grounds were concerned the council acted in accordance with section 3.5.15(2) (k) and (l).

He referred to Newingv Silcock [2010] QPELR 692. The facts of that case are apposite to this application. It involved an issue of height, specifically the construction of a house exceeding 8.5 metres without approval. The house was to be built on a self assessment basis so far as the planning scheme was concerned. The respondents intended to build a house within the 8.5 metre height restriction and they employed a surveyor to determine the ground level of the site. The first applicants became concerned during the construction of the house that the height might exceed the permissible height at the permissible level. Hence they commenced proceedings to stop construction of the house on that ground. Consequently the first respondents lodged a code assessable development application with the council seeking a development permit for a house in excess of 8.5 metres in height. A different surveyor determined that the house was 11.49 metres above ground level. The development application required assessment against the House Code. Performance criteria P2 and P3 of the House Code were particularly relevant and called for the council to make a judgement on issues to do with the consistency of the house with other buildings in the area, the potential for overshadowing, loss of views and visual amenity. The Development Application was approved. The applicants then sought declaratory relief and partly based on the Wednesbury unreasonableness principle and upon their own surveyor's evidence that the house was more than 11.49 metres above ground level.

It was held that the original building permit was not validly given because the determination of the ground level was wrong. The Court did not exercise the discretion in favour of the applicants and in so far as the Wednesbury unreasonableness principle was concerned the Court considered that the applicants faced the hurdle that the relevant provisions of the applicable Code called for the assessment of matters involving degree and judgement. His Honour referred to the fact that the applicants had taken an opportunity to make comments to the Council (even though, unlike the planning scheme in this case, the City Plan required the application for a code assessable development to be notified for public comment) and in so doing the Council was provided with the further survey and with reports from experts and town planning and visual assessment which argued for refusal of the application. Hence that was a case in which submissions were taken into account but the discretion nevertheless exercised against the applicants, contrasted with the current case in which there were representations taken into account even though there was no requirement for the Council so to do.

Mr Houston submitted that the assessment made by the Council occurred over a period of time. The fact that Mr Licciardello signed off on the Development Application on the day it was received is not material, at the very least he had been involved in the earlier representations. Mr Houston submitted that the applicants' case was all about "facts". In so far as the parking was concerned it would otherwise have met the probable solution but that the applicants had simply seized upon the "safe" to bring that matter into contention. In any event the imposition of conditions, he submitted, put the issue "to bed". Some of the conditioning he submitted was not justified, but it was complied with anyway.

With respect to the issue of ridge lines, Mr Houston submitted that in this case "ridge lines do not have any integrity in this location". He described Castle Hill at Yarrawonga as a visual "clutter". He drew a distinction between skyline on Castle Hill and ridge line within the back drop of the hill.

With respect to the parking and set back, he submitted the impact on the applicant was negligible because what was proposed was against the bottom of a steep bank where a wall was to be constructed and one could hardly say that that impact was in any way severe. Further rear set backs do not impact on streetscape.

Construction of the Planning Scheme

In Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273, the Court of appeal analysed the issue of conflict between the decision and the planning scheme by reference to the test applied in Weightman v Gold Coast City Council [2003] 2 Qd R 441:

“[23] ‘Conflict’ in this context means to be at variance or disagree with. It describes a quality of a relationship between the subject (the decision) and a part of the predicate (the scheme). Unlike ‘compromise’ in paragraph (a) (like I say), it implies no particular impact by a subject upon an object. A determination that there has been a breach of the requirement that ‘the assessment manager’s decision must not … conflict with the planning scheme’ requires the identification of the decision, the identification of some part or parts that the scheme with which the decision might be considered conflict and a decision whether the former conflicts with the latter. Only if such a determination has been made is it necessary to consider whether there are sufficient planning grounds to justify the decision.

It is the decision which requires justification in the context of the whole planning scheme.

Fryberg J (with whom Holmes J agreed) referred to the process or test approved in Weightman and said that a “purely mechanical application of the Weightman dictum” should be avoided in the context of the current as distinct from the former legislation.

In Westfield Management Ltd v Pine Rivers Shire Council & Anor [2004] QPELR 337, Judge Britton SC referred to a number of the authorities that establish relevant principles in construing planning schemes. So far as is relevant here, the construction should be a practical one in the context of the planning scheme as a whole which best achieves the apparent purpose and objects of the scheme and that a conflict alone may not have the effect of ruling out a particular proposal.

In SDW Projects (supra) Judge Rackemann referred to the use of the codes in planning schemes in the following terms:

“[46] The codes in the 2003 planning scheme follow a familiar ‘performance based’ structure, similar to codes in other IPA planning schemes. The codes commence with a statement of purpose. The codes also identify the development to which they apply and then contain ‘development requirements’, which are set out in a Table of Performance Criteria and Acceptable Solutions. The planning scheme provides that:

‘Development proposals must comply with the performance criteria to meet the objectives of the planning scheme and ensure that the DEOs are not compromised.

….

It is desirable that code assessable development comply with the acceptable solutions to ensure that each performance criterion is met. However, code assessable development may comply with an alternative solution, provided that the alternative solution can be demonstrated to meet the relevant performance criteria, to council’s satisfaction. Where no acceptable solution has provided for a performance criterion in the code, the development must provide its own solution to meet the particular performance criteria.

[47] Statements to similar effect can be found in other IPA planning schemes which adopt performance based codes. The performance criteria are generally outcome focused, while the acceptable solutions indicate a ‘desirable’ way to ‘ensure’ compliance. The acceptable solutions however, are not the only solutions. Performance criteria generally ought not be interpreted as requiring adoption of the acceptable solution, or even as requiring an alternative solution to be akin to the acceptable solution, or even as requiring an alternative solution to be akin to the acceptable solution.

[48] It is not legitimate to regard departure from the acceptable solution as necessarily indicating non-compliance with the code. In this regard, acceptable solutions differ from development standards which were often a feature of town planning schemes under the former regime. Compliance with such standards was commonly required as a relaxation or dispensation was granted. Under the performance based approach, the acceptance of an alternative solution does not represent ‘relaxation’ or a ‘dispensation’. It is another way of achieving compliance with the relevant performance criterion.”

Sufficient Grounds

In Luke & Ors v Maroochy Shire Council & Anor [2003] QPELR 447, Wilson SC DCJ referred to the sufficiency of planning grounds, notwithstanding conflict with the planning scheme:

“[103] IPA 3.5.14(2)(b) provides that the assessment manager’s decision (or, in this case, the decision of this Court) must not conflict with the planning scheme unless there are sufficient planning grounds to justify the decision. The existence of conflict is a question of law. Any conflict said to arise must be plainly identified but that is a process undertaking by looking at the scheme as a whole, rather than isolated provisions. The word ‘sufficient’ refers to the weight to be afforded on any particular ground which is advanced as a reason for approval, despite conflict; and the phrase ‘sufficient planning (sic) grounds’ refers to those planning grounds of sufficient weight to justify approval, despite the conflict, and includes any grounds which to the merits of the application.”

In Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157 the Court of Appeal wrote:

“[60] The primary judge, having concluded that there were conflicts with "relevant strategic plan(s)" was required to decide if there were "sufficient planning grounds to justify approving the application despite the conflict." In this case that exercise required the identification of "planning grounds"; an assessment of the role and importance to the planning scheme of the provisions which would be infringed should the application be approved; the adverse consequences, if any, which might flow from such infringement and the competing merits and weight of the planning grounds relied on to justify approval. Also relevant were the matters in s 4.4(3) of the Integrated Planning Act 1997 (Qld).”

However, this case was not an impact assessable Development Application. It was code assessable and not self-assessable only because of the ‘height’ trigger to which I have referred. There is a significant degree of difference between the three bases of assessment. The public (submitter) interest in impact assessment is a very material matter when one considers any statement of reasons of formal identification of grounds to justify approval despite conflict.

In any event, the grounds are plainly evident on the face of the Assessment Manager’s Report. The Applicants were permitted intimate involvement in the assessment process and I am satisfied that the reasons for the approval are clear enough to be understood by any person with an interest in the matter.

Statement of Reasons

I do not consider that the absence of a “statement of reasons” amounts to a jurisdictional error or is unreasonable in the legal sense. I have referred to this matter elsewhere. See the discussion in Brutone (supra) at [89] to [91].

Relief sought

Miss Fantin submitted that when all the grounds of invalidity were considered together, their accumulative effect was that the Court should find the decision of council invalid and set it aside, on the basis that no rational decision maker could have concluded that the proposed development complied with the codes and the planning scheme, the development assessment officer's analysis was wrong in law, effected by error and that the application should be allowed and the development application be remitted to the Council to be determined according to law.

Discussion

With respect to the issue of whether the decision was so unreasonable that no reasonable decision maker could have made it. I addressed these relevant principles in Brutone (supra) where at [3]-[8] and [83]-[85], to which I have referred earlier.

The Wednesbury principle was summarised in Newing (supra) by Judge Rackemann in the following terms:

"20. In Bon Accord Pty Ltd v Brisbane City Council (2008) 163 LGERA 288 at [112], His Honour said:

'The applicant relies on what is commonly referred to as "Wednesbury unreasonableness". The test has been described as "stringent" and "extremely confined". It is not sufficient to establish that, as a matter of merit, a different decision ought to have been preferred. What must be established is that no decision maker, acting reasonably, could have made that decision. In applying that standard, a Court must proceed with caution, lest it exceeded its supervisory role, by reviewing the decision on the merits. Whilst this Court is often charged with the responsibility of reviewing a planning authority's decision on the merits and the context of an appeal, that is not its role in proceedings of this kind. In Associated Provincial Picture Houses Ltd it was said that, "to prove a case of that kind would require something overwhelming".'

21. In establishing Wednesbury unreasonableness, in the present context, the applicants also faced the hurdle that the relevant provisions of the applicable code … call for the assessment of matters involving degree in judgment, such as for example, where a building height creates "overbearing" development. Different conclusions in relation to such matters will often be available and indeed, in this case, competing assessments and opinions were before the council and before me. It is often difficult, in such a context, to demonstrate Wednesbury unreasonableness.

22. In Lilywhite v Chief Executive Liquor Licensing Division, Department of Tourism, Fair Trading and Wine Industry Development [2008] QCA 88, the Court of Appeal referred, with their approval, to the principles expressed by Gibbs J in Buck v Babone in which, after discussing other grounds for review, it was said (underlining added):

'Even if none of these things can be established, the Courts will interfere if the decision reached by the authority appears too unreasonableness that no unreasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste, it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the Courts.'

23. Referring to this passage, Gummow J in … Eschetu said at 654:

'This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, go to establish or to deny, that the necessary criterion has been met was all one way.'

In the same case, Gleeson CJ and McHugh J said at 626:

'Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such a disagreement by describing the reasoning as 'illogical' or 'unreasonable' or even 'so unreasonable that no reasonable person could adopt it'. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.'

24. In Pullhoffer (supra) … at 518 Lord Brightman said:

'Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.'

25. Skoien SJDC analysed the rationale behind these principles in Cox & Ors v Maroochy Shire Council & Ors [2006] QPELR 628 at 63 (underlining added):

'The rationale behind the principles applying to the approach adopted by the Courts to the decisions of administrative authorities, as it seems to me, depends not just on the fact that the legislature reposed in the administrative authority the power and the duty to make the decision. It must also have been, at least in part, based on pragmatism. These administrative decisions are made on many occasions. It would be intolerable if each of them could be reversed by litigation after microscopic examination by experts and advice by lawyers. The orderly progression of a council's duties could grind to a halt if each administrative decision were delayed while each possible error was considered minutely before the next step was undertaken.'"

I considered the definition of ‘storey’ in Grieves v Townsville City Council [2009] QPEC 142 at [137], in the following terms:

"It seems to me that whatever the outcome of that debate is and regardless of whether there is an area of fill as part of the slope between the footpath and the front of the basement part of the building, the building is regardless of the definition of 'storey', three storeys in height. In Sayer & Anor v Brisbane City Council & Ors [2009] QPEC 8, His Honour Judge Searles rhetorically referred to the height of the proposal under consideration, that is, 'three or four storeys'".

Judge Searle had made the latter observation in Sayer in the following context:

"The appellants suggested that the building was not a three storey but rather a four storey building because the basement extends above the natural ground level. Given that this issue arises because of Mr Venn's application of the abovementioned residential design code, which I found to be inapplicable to the assessment of the proposal, there is no need for me to deal for this issue. In any event, if the issue was alive I indicate that I would regard the building as a three storey building having regard to the definition of 'storey' of the planning scheme. Further exhibit 2, the photo montage shows that the building is a three storey building notwithstanding the fact that part of the basement area extends above the ground level."

I observed that the factual matter considered by Judge Searle was not dissimilar to the discussion that had taken place in Grieves and I agreed with the conclusion that Judge Searle had reached in his case.

Further with respect to ‘height’ and ‘storeys’, I do not think that the objection about other definitions is sustainable. I do not consider the use of a report from a consultant such as Mr Bruschi to be irregular or impermissible in the assessment process. The sub-floor space appears not to have been considered to be a liveable space or a space in which one might walk around in a regular way or in which to place furniture and appliances. The latter descriptions, of course, are to the Glossary of Building Terms but the space seems to me to be on the construction of the definition in the planning scheme of the nature of those matters referred to as exceptions in paragraph (a)(i) to (v). The Council’s assessment of height, its determination of a definition of ‘floor’ and its approach to the issue of the number of ‘storeys’ is not an error that would warrant the interdiction of this court.

The matter of the ‘ridgeline’ and ‘character’ are not material matters. The appearance of the buildings in this locality is a clutter or cacophony of houses of different shapes, bulk and sizes and of different appearances of height as they ascend (or descend) on the varying slopes of Yarrawonga. There is no defined ‘ridgeline’. The skyline is not a relevant matter. The proposed development creates a different external shape and appearance but that will be barely discernible in the context of the surrounding area.

I do not consider that these matters have been dealt with by the Council in a way that would warrant the interdiction of this Court.

The setback matter is a non-issue. The Council’s assessment of it was unobjectionable, given the detail of the proposal. The parking and safety matter is also a non-issue. The Council’s approach was unobjectionable. It resolved competing views including expert opinions after analysis and in a proper exercise of the discretion reposed in it. The making of conclusions was open to Council and appropriate.

The Development Application in reality, despite the Applicants’ very great concerns, which I am satisfied were genuinely held by both of them, was a simple proposal. The applicants’ were concerned about their panoramic views. However, there is not and cannot be absolute guarantee of such an amenity. The proposal was thoroughly assessed. The Council was satisfied that it was able to be approved. The Council did not act unreasonably in the relevant legal sense. Even taking a broad and unfettered approach to the possible categories of jurisdictional error, I am unable to conclude that there was jurisdictional error.

The applicants relied to an extent on alleged factual errors. I do not think there is substance in this matter of complaint. It is really a “merits” issue. However, if the factual conclusions were reasonably open to the Assessment Manager, then there is no jurisdictional error: see Di Marco v Brisbane City Council & Others [2006] QPEC 035 at [29], a case that involved ‘views’.

In Cox & Ors v Maroochy Shire Council [2006] QPELR 628. His Honour Senior Judge Skoien at [63] and [64] had referred to ‘pragmatism’ in decision making by administrative authorities, in the following context:

“[63] The rationale behind the principles applying to the approach adopted by courts to the decisions of administrative authorities, as it seems to me, depends not just on the fact that the legislature reposed in the administrative authority the power and the duty to make the decision. It must also have been, at least in part, based on pragmatism. These administrative decisions are made on many occasions. It would be intolerable if each of them could be reversed by litigation after microscopic examination by experts and advice by lawyers. The orderly progression of a council's duties could grind to a halt if each administrative decision were delayed while each possible error was considered minutely before the next step was undertaken. Some authorities might decline to make, or defer making, a decision which had any possibility of challenge, perhaps fearing the cost and inconvenience of that challenge. So, to paraphrase, perhaps inexactly, the approach adopted by the law, so long as the authority's decision was legally and factually defensible the courts decided that it should stand.
[64]I have not forgotten that this is not a merits appeal, but in deference to the undoubtedly genuinely held views of the Applicants I should point out some matters which I consider are not able to be challenged. In the absence of an unmistakable and unqualified statutory provision no-one owns a particular view. The erection of any structure will to some extent impede another's view. While the right to panoramic views are never (in my experience) protected the right to vistas (that is, "avenue views", for example between buildings) often are. Unless extraordinary reasons are demonstrated I consider that provisions which say baldly "views must not be adversely affected by a development" must be interpreted as qualified by an adverb such as "unreasonably". Otherwise the provision would prohibit any building at all.”

In Main Beach Progress Association v Gold Coast City Council & Anor [2008] QPELR 675 Judge Rackemann confirmed at [89] that “the ‘performance based’ approach to codes in IPA planning schemes admits of the prospect of alternative solutions which may comply with the planning scheme, by meeting the performance criteria”: that is, ‘alternative solutions’ beyond the ‘acceptable solutions’.

In Craig v South Australia (1995) 184 CLR 163, the Court cited three examples of a Court entertaining a matter outside the limits of its functions or powers, namely:

"(a) the absence of a jurisdictional fact;

(b) disregard of a matter that the relevant statute requires be taken into account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and

(c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior Court is performing or the extent of its powers in the circumstances of the particular case."

In Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [72]-[73] the Court, referring to Craig, emphasised that those examples were "just that - examples". It would be apparent from my citing material passages from the Chief Justice's article (infra), that in Kirk the High Court considered the convergence between State and Commonwealth Judicial Review and that following Kirk State Judicial Review has now received the same protection as the Commonwealth and the High Court affirmed the centrality of the concept of "jurisdictional error" in Australian administrative law.

In Newing (supra) a house was constructed to a height exceeding 8.5 metres without approval. A Supreme Court stay of further construction was granted. Subsequently approval was obtained. The issues were whether that approval was validly granted and the application of the Wednesbury principle. The planning scheme required notification for public comment even though it was a code assessable development, unlike this case. Where the matter of which the council is required to be satisfied “is a matter of opinion or policy or taste”, it is difficult to show error or unreasonableness. The applicant contended that the assessment manager had simply adopted the views of the council employee who had recommended conditional approval. His Honour Judge Rackemann found that whilst the decision of each of the officers was consistent, in the absence of evidence to the contrary it could not be said that the second decision-maker had simply adopted the reasoning of the first decision-maker. There was evidence that the second decision-maker had taken time to consider the proposal before approving the proposal as assessment manager.

In Peko-Wallsend Ltd (supra) Gibbs CJ wrote (at pp30-31), in the context of a Minister having made a decision with the assistance of a departmental analysis:

“Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relied entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with the law.”

Discussion about jurisdictional error

The more recent developments in jurisdictional error have been the subject of authoritative article by the former Chief Justice of New South Wales on J.J. Spiegelman AC. His Honour in an article "The Centrality of Jurisdictional Error" (2010) 21 PLR 77 considered the effect of Kirk and analysed jurisdictional error and its scope. His Honour stated the following propositions, which I have collated from the article (at 83-87), hopefully in context:

"Kirk is the most recent affirmation by the High Court of the resilience of the distinction between jurisdictional and non-jurisdictional error. The first emphatic confirmation of this traditional common law distinction was the High Court judgment in Craig v South Australia … which identified both the significance of this distinction and set out a list, affirmed in Kirk not to be a comprehensive list, of matters which constitute jurisdictional error."

His Honour referred to the High Court having in Kirk extended the constitutional provision granting relief where there has been jurisdictional error by an officer of the Commonwealth, to the parliaments of the states. His Honour continued (as part of the extracts to which I have referred above):

"The distinction (between jurisdictional and non-jurisdictional error) marks the relevant limit on state legislative power. Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief from non-jurisdictional error of law appearing on the face of the record is not beyond power."

His Honour then wrote:

"It can readily be accepted that there is no single test or theory or logical process by which the distinction between jurisdictional and non- jurisdictional error can be determined. Nevertheless, as Gleeson CJ pointed out:

'Twilight does not invalidate the distinction between night and day.'

Furthermore, as Hayne J put it in Aala:

'The difficulty of drawing a bright line between jurisdictional error and error on the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error when the decision-maker makes a decision outside the limits of the functions and powers conferred on her or him, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision-maker is authorised to decide is in an error within jurisdiction … the former kind of error concerns departures from limits upon the exercise of the power, the latter does not.'

This approach reflects the most frequently cited general proposition contemporary Australian administrative law, a proposition which, in the light of Kirk, must now be understood to apply both to the Commonwealth and State jurisdictions. I refer to the frequently cited reasoning of Brennan J in Attorney-General (NSW) v Quin:

'The duty and jurisdiction of the Court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the Court avoids administrative injustice or error, so be it but the Court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent to which they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.'

This is a vital and indeed, in my opinion, central distinction often expressed in terms of the difference between merits and legality."

His Honour then summarised the principle in the following terms:

"The central proposition remains that there is a distinction between ensuring that powers are exercised for the purpose, broadly understood, for which they were conferred and in the manner in which they were intended to be exercised, on the one hand, and the reasonableness or appropriateness of the decisions made in the exercise of such powers on the other hand. Reasonable minds can and will differ as to where the line is to be drawn. The former is an integrity function which is inherent in the concept of 'jurisdictional error'."

The applicants seek remedies that are discretionary. As I have observed, the discretion of the court is both wide and unfettered. A good example of the breadth of the discretion is discussed in Bon Accord (supra) at [173] et seq. and in Cox (supra). Of course, considerations of that nature largely do not exist in this case. However, the extent of the informal consultation by the Council with the applicants and the consideration given to the issues raised by them before and during the assessment process is a matter that is relevant within the broad discretion that the court has in this case.

The alleged deficiencies in the Decision Notice were mere "technical deficiencies". The absence of a Statement of Reasons – if it amounts to non-compliance at all – would be excused in this case on the following bases:

· The Development Application was code assessable.

· The applicants made extensive submissions and representations to the council.

· The decision is subject of a detailed review in these proceedings.

There have been delays since the Development Application was approved, which impacts on the co-respondents. That is also a relevant matter in the context of an exercise of discretion.

Conclusion

The Council assessed the Development Application thoroughly. It gave attention to the informal representations of the Applicants. It applied an alternative solution. It has not acted unreasonably in the Wednesbury sense. There has been no factual error, irrelevant considerations taken into account or failure to take into account relevant considerations, bearing in mind the observations in Cox (supra) that would vitiate the decision to approve the proposal. There has been no pre-judgment of any material matter. This is not a case of apprehended bias as alleged against the authorised delegate. A decision by delegation was entirely regular and appropriate. There has been no procedural irregularity or jurisdictional error by the Council.

The applicants have not discharged their onus. The application should be refused.

Orders

1. Application refused

CITATION:	Glastonbury & Anor v Townsville City Council & Ors [2011] QPEC 128
PARTIES:	John GLASTONBURY and Joseph SHLEGERIS (Applicants) and TOWNSVILLE CITY COUNCIL (Respondent) and MACCULLUM & PARTNERS ARCHITECTS (First Co-Respondent) and Robert John STRANO and Cindy Louise STRANO (Second Co-Respondents)
FILE NO/S:	320 of 2009
DIVISION:	Planning & Environment Court
PROCEEDING:	Originating Application
ORIGINATING COURT:	Planning & Environment Court, Townsville
DELIVERED ON:	20 September 2011
DELIVERED AT:	Townsville
HEARING DATES:	14, 15 & 16 March 2011
JUDGE:	Durward SC DCJ
ORDERS:	1. Application refused.
CATCHWORDS:	ENVIRONMENT AND PLANNING - DECISION OF COUNCIL APPROVING DEVELOPMENT APPLICATION FOR MCU - EXTENSIONS TO DWELLING - CODE ASSESSABLE - whether invalid - whether errors of fact, taking into account of irrelevant considerations and failure to take into account relevant considerations - whether failure to apply planning scheme provisions - whether Decision Notice is defective ENVIRONMENT & PLANNING - CODE ASSESSABLE DEVELOPMENT - ASSESSMENT PROCESS - whether jurisdictional error - whether Wednesbury principle applies - whether Council's decision so unreasonable that no reasonable assessment manager could have made it ENVIRONMENT & PLANNING - ASSESSMENT PROCESS - extensive informal submissions and representations between co-respondent and council prior to lodgement of Development Application enduring assessment process - whether submissions and representations able to be taken into account by decision maker - whether in fact they were taken into account ENVIRONMENT & PLANNING - apprehended bias - whether apprehended bias on part of council planning director - whether pre-judgment of Development Application PRACTICE & PROCEDURE - PLEADINGS - ORIGINATING APPLICATION - AMENDMENTS - whether leave to further amend should be granted on eve of trial DELEGATION OF POWERS - whether determination of Development Application should have been made by council resolution - whether delegation to council planning director proper or validly exercised
LEGISLATION:	Integrated Planning Act 1997 ss 1.2.1, 1.2.2, 1.2.3, 3.5.4, 3.5.13, 3.5.15, 4.1.21, 4.1.22, Schedule 10; Sustainable Planning Act 2009 s 818; Planning & Environment Court Rules 2010 s 4; Uniform Civil Procedure Rules 1999 r 5.
PLANNING SCHEME: PUBLICATIONS: CASES APPLIED: CASES CONSIDERED:	Townsville City Plan 2005 ‘The centrality of jurisdictional error’, article by Hon JJ Spigelman AC, (2010) 21 PLR 77. Emerald Developments (AUST) P/L v Minister for Environment, Local Government, Planning and Women [2006] QPELR 714; Westfield Management Ltd v Brisbane City Council [2003] QPELR 520; Minister for Immigration v Jia (2001) 205 CLR 507; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Craig v South Australia (1995) 184 CLR 163; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; SDW Projects v Gold Coast City Council [2007] QPELR 24; Central Equity Ltd v Gold Coast City Council [2007] QPELR 356; Newing v Silcock [2010] QPELR 692 Woolworths Limited v The Warehouse Group (Australia) Pty Ltd [2003] NSWLEC 31; Bon Accord Pty Ltd v Brisbane City Council (2008) 163 LGERA 288; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Lyons v Misty Morn Developments Pty Ltd [1998] QPELR 268; Brutone Pty Ltd v Townsville City Council & Ors [2009] QPEC 143 Dunlop v Woollahra Municipal Council [1975] 2 NSWLR 446; Maroochy Shire Council v Shadbolt & Anor [2007] QPELR 213; Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2009] NSWLEC 109; Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50; Puhlhofer & Anor v Hillingdon London Borough Council [1986] AC 484; Ebnerv Official Trustee in Bankruptcy (2000) 205 CLR 337; Smits & Anor v Roach & Ors (2006) 227 CLR 423; Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; Central Sawmilling No1 Pty Ltd v Queensland [2003] QCA 311; Goldtaper Pty Ltd v Berela Pty Ltd (unreported) BC 200004654, 03 February 2000; British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283; Webb v The Queen (1994) 181 CLR 41 McGovernv Ku-Ring-Gai Council [2008] NSWCA 209; Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; Kioa v West (1985) 159 CLR 550; R v Brisbane City Council; ex parte Read [1986] 2 Qd R 22; Lewiac Pty Ltd v Gold Coast City Council [1993] QPLR 160; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; NRMCA (QLD) Ltd v Andrew [1993] 2 Qd R 706; Mudie v Gainriver Pty Ltd [2002] 2 Qd R 53; Eschenko v Cummins [2000] QPELR 386; Parramatta City Council v Hale (1982) 47 LGRA 319; Broad v Brisbane City Council (1986) 2 Qd R 317; Rosswalmore Property Pty Ltd v Maroochy Shire Council [2009] QPELR 73; SZEJK v Minister for Immigration and Multi-cultural and Indigenous Affairs [2006] FCA 724; Yu Feng Pty Ltd v Ipswich City Council & Ors [2007] QPEC 125; R v The District Court; ex parte White (1966) 116 CLR 644; Woolworths Limited v The Warehouse Group (Australia) Pty Ltd [2003] NSWCA 270; Parramatta City Council v Pestrell (1972) 128 CLR 305; Lomas v Gold Coast City Council [2007] QPELR 539; Weightman v Gold Coast City Council [2003] 2 Qd R 441; Main Beach Progress Association v Gold Coast City Council & Anor [2008] QPELR 675; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Cox & Ors v Maroochy Shire Council & Ors [2006] QPELR 628; Grieves v Townsville City Council [2009] QPEC 142; Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273; Westfield Management Ltd v Pine Rivers Shire Council & Anor [2004] QPELR 337; Luke & Ors v Maroochy Shire Council & Anor [2003] QPELR 447; Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157; Di Marco v Brisbane City Council & Others [2006] QPEC 035
COUNSEL:	Ms T Fantin for the Applicants R A Quirk for the Respondent J D Houston for the Co-Respondents
SOLICITORS:	Stuart Watson Lawyers for the Applicants Townsville City Council Legal Services for the Respondent Connolly Suthers for the Co-Respondents