Greet v Logan City Council and Campbell

[2001] QPEC 63

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Greet v Logan City Council and Campbell [2001] QPEC 063

PARTIES:

ALAN ROSS GREET   Appellant
And
LOGAN CITY COUNCIL  First Respondent
And
EDWARD CAMPBELL as Chief
Executive of the Department of
Local Government and Planning             Second Respondent

FILE NO/S:

1127/01

DIVISION:

Planning and Environment

PROCEEDING:

Preliminary Points – Validity of Declaration pursuant to s50

Standard Building Regulation

ORIGINATING COURT:

Brisbane

DELIVERED ON:

21 September 2001

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2001

JUDGE:

Judge Quirk

ORDER:

Ruling that Declaration valid

CATCHWORDS:

COUNSEL:

Mr B Cronin for the Appellant
Mr S Doyle SC and Mr J Houston for the First Respondent
R Jones for the Second Respondent

SOLICITORS:

Andrew Abaza for the Appellant
Corrs Chambers Westgarth for the First Respondent
Crown Law for the Second Respondent

1. This matter involves an Appeal under s44 of the Building Act.  One of the issues raised in the Notice of Appeal concerned the validity of a declaration made by the respondent Council on 5 May 1998 pursuant to s50 of the Standard Building Regulations.  On 1 May 2001 His Honour Judge Brabazon ordered that the issue of the validity of the Council’s resolution should be decided as a preliminary point.

1. To do this one must have some appreciation of the circumstances in which the declaration was made. Attention must be given to the relevant provisions of the Act. In the context of this case it is to be noted that under s31(2) of the Building Act a private certifier (in dealing with matters within the ambit of his authority) must decide an application against the Building Act. Under s11(1) of the Standard Building Regulation, the application must also be assessed for compliance with the Standard Building Regulation (and relevant local laws and planning instruments). 

1. Section 20 of the Standard Building Regulation (which requires the Local government to consider certain matters) applies to such an assessment if:

“(a) a development application involves a matter mentioned in schedule 6; and

(b)the local government is the assessment manager;

and

(c)the application is made to a private certifier”.

1. Among the matters mentioned in Schedule 6 of the Standard Building Regulation is:

“5.       the amenity and aesthetic impact of building work for forms of building or localities the local government must assess under s50”.

1. Section 50 was included in the Standard Building Regulation by Building Legislation Amendment Regulation (1) 1998.  Section 50 provides:

“50.(1)A local government, by resolution, may declare, for single detached class 1 buildings or class 10a buildings, forms of buildings and localities the local government considers may have an extremely adverse effect on the amenity or likely amenity of a locality or which may be in extreme conflict with the character of a locality.

(2)Development applications for forms of buildings or in localities mentioned in subsection (1) must be assessed by the local government for the amenity and aesthetic impact of the proposed building work.”

(3)The local government may refuse an application to which subsection (2) applies only if:

(a)        The building, when built will have an extremely adverse effect on the amenity or likely amenity of the building’s neighbourhood; or

(b)       The aesthetics of the building, when built, will be in extreme conflict with the character of the building’s neighbourhood.”

The amendment came into effect on 30 April 1998. 

1. Class 1  and Class 10 buildings are identified in the Building Code of Australia in part 1.3.2 which provides:

“1.2.2    Classification

Class 1 and 10 buildings are classified as follows:

Class 1 – one or more buildings, which in association constitute –

(a)      Class 1a – a single dwelling being:

(i)       A detached house; or

(ii)     One or more attached dwellings, each being, separated by a fire-resisting wall, including a row house, terrace house, town house or villa unit; or

(b)     Class 1b – a boarding house, guest house, hostel or the like with a total floor area not exceeding 300m² and in which not more than 12 persons would ordinarily be resident;

which is not located above or below another dwelling or another Class of building other than a private garage (see Figures 1.3.1, 1.3.2 and 1.3.3)”.

“Class 10 – a non habitable building or structure being –

(a)     Class 10a – a non habitable building being a private garage, carport, shed, or the like; or

(b)     Class 10b – a structure being a fence, mast, antenna, retaining or freestanding wall, swimming pool, or the like.”

1. I will now turn to the resolution in question.  On 20 April 1998 the respondents’ Director of Planning and Development prepared a report entitled:

“Subject:  Assessment with Respect to Amenity and Aesthetics of Development Applications for Certain Class 1a and Class 10a Buildings”.

The full text of the report is found in Exhibit E to the affidavit of the appellant filed on 16 March 2001. At the time of the report s50 had not yet come into force and its predecessor (s30BG) of the Building Act was still in place.

1. The report, in essence, summarises s30BG and Council’s By-Law 27 (Removal and Re-erection of Building) which, the author indicated, had in the past been used to ensure that substandard buildings were not introduced into the City. The author went on to express the opinion that By-Law 27 would be of no effect when the IntegratedPlanning Act commenced and (as was anticipated) s30BG of the Building Act was omitted. 

1. The report then discussed the changes that would follow the introduction of s50 and the desirability of maintaining control of over “house removals”.  It also pointed out that control over Class 10 buildings  should be limited to those having a floor area in excess of 60m² “as it has been found that buildings smaller than these have not been of concern in the past”.

1. The report ended with the recommendation that:

“1.Logan City Council in accordance with s.50.1.(1) of the Building Legislation Amendment Regulation of 1998 declares that all development applications for class 1 removal houses and class 10 buildings which have a floor area in excess of sixty square metres proposed to be erected in the city must be assessed by Council on the amenity and aesthetics in respect of the proposed work, and

2.Fees for assessing removal houses remain at the current levels whilst the fee for assessing a class 10 building exceeding sixty square metres be set at $125.”

1. As the minutes of the Town Planning and Environment Committee meeting of 28 April 1998 indicate, the report of the Director was considered and the Committee recommended “that the report be received and adopted”.  At the meeting of the Council on 5 May 1998, it was resolved that the Committee’s recommendations contained in various items in the Committee’s minutes of 28 April 1998 including the matter here in question be “adopted”. 

1. The result of this is that the Council in effect resolved to make a declaration in the wording that follows “declares” in paragraph 1 of the recommendation found in the Director’s report.  The content of paragraph 2 need not be considered at this point.  As stated I am required to consider the validity of that declaration.  I will deal in turn with the challenges to that validity that were made befor me:

1. The resolution was based upon a wording of section 50 of the Standard Building Regulation 1993 recorded in Exhibit E to the affidavit of the appellant which was not the law.

The first point made was that the declaration is said to be “in accordance with s50.1.(1)”. The source of the relevant power is s50(1) of the Standard Building Regulation 1993 and accordingly there has been a typographical error in the identification of the source of power in that an additional numeral has been included. There is no s50.1.(1) in the Standard Building Regulation and on any sensible reading of the material it is clear that it was s50(1) that was under consideration at all material times.

1. The fundamental question here is whether a power to declare, as the respondent did, existed and not how that power was described by those involved in considerations that led to the resolution.  I see nothing in the first point. 

2.          The resolution was made on an erroneous premise and relied upon irrelevant considerations.

1. The second point drew attention to parts of the report of the Director in which he made observations regarding the role of private certifiers in the “new legislation” and the check on their authority to approve development applications that could be provided by s50.  He went on:

“Sections 50.1.(1) and (2) are extracted in part as follows:

50.1.(1)A local government, by resolution may declare a method of building or locality for which development applications for a class 1a building or a class 10 building or structure must be assessed by the local government on the amenity and the aesthetic impact of the proposed building work.

(2)       The assessment manager man refuse an application to which subsection (1) applies if:-

(a)     The building when built will have an extremely adverse effect on the amenity or likely amenity of the building’s neighbourhood; or

(b)     The aesthetics of the building, when built, will be in extreme conflict with the character of the building’s neighbourhood.”

1. Essentially the point made is that the respondent Council was misled by the Director’s incorrect reading of s50.  It was pointed out that the “extract” did not follow exactly the wording of s50 and this is true.  However the report must be read sensibly and it is plain that the Director was in fact paraphrasing the section as he read it and, as I see it, his interpretation was not so far from a proper interpretation of the section as would mislead those reading it in any important respect.

1. In any event the body of his report does not form part of the Council’s declaration.  The Council, being a statutory body itself, would not be bound by any interpretation of relevant legislation made by one of its officers.  It has to be said again that it is whether the power to resolve as the respondent did existed that is fundamental here and not the language in which the Director chose to discuss the power.

1. There is ample authority for the proposition advanced by Senior Counsel for the respondent that when a power is exercised a mistake in the source of the power works no invalidity. Validity depends simply on whether a relevant power existed (Johns –v- ASIC (1992) 178 CLR 408 at 426; Moore v Attorney-General (Irish Free State), [1935] A.C. 484 at p.498; R v Bevan; Ex parte Elias and Gordon (1942), 66 CLR 452 at p.487; Brown v West (1990), 169 CLR 195 at p.203.).

I find that there is nothing in this point that would support a finding that the resolution was invalid.

3. The resolution was premised upon a further erroneous basis namely, By-Law 27 of the Albert Shire Council which was irrelevant and had no reasonable relation to any relevant matter specified by section 50 of the Standard Building Regulation 1993.

1. It was suggested that the Council was mislead by the reference to By-Law 27 in the Director’s report.  It was submitted that there was no real connection between By-Law 27 which deals with removable buildings and s50 which is primarily concerned with amenity and character impact.  While it may be overstating it to say that there can be no connection between building removal and relocation and potential amenity impact, as I read his report, the Director’s reference to By-Law 27 was no more than narrative and formed no part of the declaration ultimately made.  It is, in my view, going too far to suggest that this reference in his report deprives the declaration of validity.

4.The resolution refers specifically to “Class 1a Removal Houses” and “Class 10 Buildings which have a floor area in excess of 60 square metres” whereas section 50 refers to “Single Attached Class 1 Buildings” and “Class 10a Buildings”.

1. It is difficult to see any merit in this point.  The Building Code definition of Class 1 buildings has already been given.  It is plain enough that “Single Detached Class 1 Buildings” are Class 1a Buildings as defined.  There is nothing impermissible in the declaration’s adding the words “Removal Houses” to confine its ambit to a certain category of Single Detached Class 1 Buildings.

1. Similarly the declaration’s reference to “Class 10 Buildings” which have a floor area in excess of 60m^2” could have no application to Class 10b structures and must necessarily be confined to Class 10a Buildings.  The decision to confine the declaration’s operation to only certain Class 10a Buildings (those having a floor area in excess of 60m²) is equally permissible.  I see nothing in this point.

5.          The declaration was not directed, as required by section 50(1) of the Standard Building Regulation 1993 as to whether Single Detached Class 1 Buildings or Class 10a Buildings were to have an extreme adverse effect on the amenity or likely amenity of a locality which may be in extreme conflict with the character of a locality.  Consequently the resolution was not reasonably proportionate to the pursuit of the enabling purpose within the meaning of South Australia v Tanner 1989 166 CLR 161 in that it failed to distinguish between those buildings which might have an extreme adverse effect or be in extreme conflict and other buildings not having such an effect.

(It was also contended that the resolution was invalid because it is prohibitory).

1. While it might have been better had the declaration followed the wording of s50 and made it clear that the Council considered that development of the kind identified might have the specified consequences I have concluded that the absence of such a statement is not fatal to the declaration.  The matter must be considered against the background of the section read as a whole. Although (as has been mentioned) the section number was incorrectly given in a minor respect, the nature of the power being exercised was clear enough. 

1. To exercise that power the Council is required to identify certain development (being for a Class 1a Building or a Class 10 Building) which has the potential for an extremely adverse effect on amenity or likely amenity of a locality or extreme conflict with the locality’s character.  Alternatively it is required to identify localities where development (of the kind mentioned) has such a potential.  Once that has been done and the forms of building and localities (where this is necessary) are identified in the declaration, applications for such development are to be considered in accordance with sub-s (2) and (3).  That the Council has formed an opinion about the relevant potential may be inferred from the making of a declaration (pursuant to s50) that such an assessment is required. As has been pointed out repeatedly in this and appellate courts, a measure of common sense is called for in the interpretation of planning controls of this kind.  (see also Widgee Shire Council v Bonney (1907) 4 CLR 977 at 983; Acts Interpretation Act 1954 s9)

1. In the context of this point it is also relevant to consider the operation of the words “forms of buildings and localities” which appear in the section.  Suggestion was made that, as well as specifying the forms of development which require assessment, the specific locations for such development which give rise to the need for assessment must also be identified.  Arguably this has been done here in any event and the words “in the City” indicate that the declaration in respect of the specified development is to have a city-wide application.

1. However, in my view, the better interpretation is that the words “and localities” allow the Council to limit the operation of the declaration not only to certain forms of building work but to certain locations if it wishes to do so but that it is not compelled to do so.  Accordingly it is open to the Council to declare that certain forms of building work (being for a Class 1a Building or a Class 10 Building) are required to be assessed wherever they are intended to be located in the city.  It is equally open to the Council to declare that all forms of building work (being for a Class 1a Building or a Class 10 Building) are required to be assessed if they are intended to be located in a specific area.  I believe that such an interpretation is more consistent with the wording of s50(2). 

1. The declaration, sensibly read, is not prohibitive.  It does no more than identify a form of development which requires assessment as provided for in s50.  It is not open to the Council to refuse an application for such development unless the requirements of subsections (2) and (3) are met.

I find that there is nothing in this point that would lead to any invalidity of the resolution.

6.The resolution does not identify any criteria for assessment.

1. The basis of this submission is not entirely clear. Section 50(1) which provides the power for such a declaration (while requiring the Council to form the relevant opinion regarding the potential for adverse impact upon amenity or likely amenity or extreme conflict with character) says nothing of the specific criteria upon which the assessment must rely.

1. The manner in which the assessment is to be conducted is controlled by sub-s (2) and (3).  Again, in these subsections, there is no specification of relevant criteria and, to those experienced in these matters, the wisdom of this would be apparent. 

1. “Amenity” being one of the components of “environment” as defined by the Integrated Planning Act is a very broad concept and it would be a difficult task indeed to identify exhaustively criteria by reference to which impact upon amenity or character should be assessed.

I find that the point provides no basis for any ruling against the declaration’s validity.

7.The declaration is, in reality, an amendment of the Town Planning Scheme.

1. In this context reference was made to such authority as  Makucha v Albert Shire Council [1996] 1 Qd R 53 and Kwiksnax Mobile and General Caterers Pty Ltd v Logan City Council [1994] 1 Qd R 291. The circumstances of those cases were markedly different. The Integrated Planning Act in Chapter 3 (IDAS provides a system for integrated State and Local Government assessment and approval processes for development. Section 4(1) of the Standard Building Regulation provides that, subject to sub-s (2) and (3), the carrying out of all building work is assessable against the Standard Building Regulation.  The Standard Building Regulation is a code for IDAS.

1. The entitlement of a private certifier to decide certain development applications is found at s5.35(1) of the Integrated Planning Act and, has already been pointed out, that entitlement is qualified by the provisions of the Standard Building Regulation which have been considered in this hearing. Consequently the suggestion that the making of a declaration as contemplated by s50 of the Standard Building Regulation is in conflict with IDAS is untenable.

1. For these reasons I am not prepared to find that the relevant declaration was invalid and I rule accordingly.