Home Design v Brisbane City Council

[2007] QPEC 132

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Home Design v Brisbane City Council [2007] QPEC 132

PARTIES:

HOME DESIGN (AUSTRALIA PTY LTD)

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

FILE NO:

1100 of 2007

PROCEEDING:

Application to strike out notice of appeal

DELIVERED ON:

14 December 2007

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2007

JUDGE:

Judge Brabazon QC

ORDER:

Application dismissed

CATCHWORDS:

ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – APPLICATIONS – jurisdiction of Court under s 4.1.33B IPA – whether the proper construction of s 4.1.33B IPA turns on the decision of Council or the relevant local law – whether decision is about the use of premises

Integrated Planning Act 1997, s 4.1.33B
Natural Assets Local Law 2003, ss 2, 20, 28
Local Government (Planning and Environment Act) 1990, s 7.1(1)
Local Government Act 1993, s854

Cases cited:

Marshall v Averay 2007 QPELR 137 at 148-9
Octopus Media Pty Ltd v Brisbane City Council [2006] QPELR 678
McDonalds Properties (Australia) Pty Ltd v Maroochy Shire Council [1998] 1 QPELR 3

COUNSEL:

Mr A. N. S. Skoien for the appellant

Mr M. Williamson for the respondent

SOLICITORS:

Warlow Scott Lawyers for the appellant

Brisbane City Legal Practice for the respondent

The Fig Tree

1. Home Design owns a house property at 28 Queens Road, Hamilton. It wants to do two things – to move slightly and then renovate the existing house, and to build a tennis court at the rear of the property. It has received approval for the work on the house, but has run into trouble with its plans for the tennis court.

1. Near the north-eastern corner of the back garden there is a tree stump. It is a very large tree stump. It is not the ordinary compact shape of a single stump. Rather, it is a collection of trunks and roots, fused together in an irregular shape. It is about 5 metres high, and about 5.4 metres in girth. It is the remains of a very large fig tree, ficus hilli. It seems that the tree was cut down some time last year.

1. On 5 June 2006 Home Design’s solicitors submitted an application to the Council. It was on a form, which referred to the Natural Assets Local Law 2003 (“NALL”). It was headed “application to carry out works (including interfere with) on protected vegetation”. The completed form gave the street address and real property description of the property. It attached a schedule setting out a number of reasons why the stump should be removed. The application enclosed some letters from neighbours, and a former occupant of the house. In effect, they had thought that the tree was a nuisance, and should be removed.

1. On 1 February 2007 Home Design received the Council’s response. It was a Permit to Carry Out Works to Protected Vegetation. It referred to s 20 of the NALL. It allowed the removal of the stump, with conditions. One condition required the stump to be replaced with an advanced fig tree of the same type. It was to be planted in the northeast corner of the site.

1. Section 28 of the NALL provides for a review of such a decision. On 13 February 2007 Home Design’s solicitors lodged an application to review the decision. The application complained about many of the conditions.

1. The review was completed on 20 March 2007. The written review was compiled by Mr Bill Manners, an officer of the Council. He described himself as an “authorised person” to exercise the powers under the NALL, s 20 and s 28.

1. He accepted some of the criticisms of the conditions. He did not accept the submission that it was unnecessary to replace the old fig tree with a new one. He issued a Varied Permit dated 20 March 2007.

1. Home Design remained unhappy with that Varied Permit. On 18 April 2007 a Notice of Appeal was lodged in this Court. Paragraphs 23 to 28 deal with the Varied Permit. It asks that all of the conditions 1 to 25 be set aside. The reasons for that claim are set out.

This application

1. On 24 October 2007 the Council filed this application. It asks that the appeal be struck out. It is submitted that the Court has no jurisdiction to hear and determine the appeal, as:

“The decision which is the subject of the appeal is not a decision which enlivens s 4.1.33B of the Integrated Planning Act 1997 as the local law under which the decision was made, properly construed is not one which:

(a)        is about the use of premises; nor

(b)        the erection of a building or other structure permitted by the respondent’s planning scheme”.

Section 4.1.33B of IPA

Appeals against local laws

“(1)An applicant who is dissatisfied with a decision of a local government or the conditions applied under a local law about the use of premises for the erection of a building or other structure permitted by the planning scheme may appeal to the Court against the decision or the conditions applied.

(2)The appeal must be started within 20 business days after the day notice of the decision is given to the applicant.”

1. That section is part of Division 9 of Chapter 4. Division 9 deals with a variety of “appeals to court about other matters”. Nine separate situations are dealt with, each with some particular requirements.

1. For Home Design, it is submitted that the section should not be construed narrowly. It should not be construed in such a way as to deprive the appellant of the opportunity to ask this Court to review the merits of the decision. It is said that the proper construction of s4.1.33B should be one which focuses upon the relevant decision, and asks whether a decision or conditions have been made under a local law, and whether they relate to the use of premises or erection of a building or other structure.

1. Here, Home Design submits that the Varied Permit amounts to a decision about “the use of premises”. Removing the tree stump is an activity which forms part of the residential use of the premises. In particular, it will be part of the process of building a tennis court. Looked at that way, the permit amounts to a decision about the “erection of a structure”.

1. For the Council, it is submitted that the word “about” in s4.1.33B qualifies the words “local law” so that the focus is upon the substance of the local law, not the decision or conditions which are the subject of the appeal. If the focus is on the “decision”, the Court may be faced with a situation where its jurisdiction covers only one aspect of a decision made under a local law, but leaves other aspects of that same decision to be reviewed in a different jurisdiction.

1. It is said that attention has to be paid to the purpose and effect of a local law. In this case, s 2 of the NALL says that the objects are:

“(1) Protecting the biodiversity values of the city … or preserving natural land forms

…

(c)facilitating the retention of the landscape character of the city;

(d)facilitating the retention of the historic and cultural values of the city;

By restricting indiscriminate clearing of vegetation….”

Therefore, it is said, the objects of the local law do not relate to the use of premises. Rather, they relate to the protection of the natural assets of the city – in this case, a tree.

Local Laws

1. It is helpful to consider the history of the section. It goes back to s 7.1(1) of the repealed Local Government (Planning and Environment) Act 1990:

“Appeals to the Court

7.1(1)     A person may appeal to the Court where-
             (a)       this Act confers the right of appeal;

(b)that person is an applicant who is dissatisfied with a decision of a local government or conditions applied pursuant to the planning scheme or local law with respect to the use of any premises or the erection of a building or other structure permitted by the planning scheme…;

(c)that person is an applicant or objector who is dissatisfied with a decision of a local government made pursuant to an interim development control provision.” (emphasis added)

1. The IPA was introduced without the equivalent right to appeal against decisions made under a local law. Then, in 1993, the Local Government Act restricted the power of local governments to make local laws:

“Section 854. Local laws and subordinate local laws about development

(1)A local government must not, on or after 30 March 1998, pass a resolution to propose to make a local law, or a subordinate local law, establishing a process about development, within the meaning of the IPA, if the process would be similar to, or duplicate all or part of the process in Chapter 3 of that Act.”

1. This local law was adopted on 7 March 2003. It was not suggested here that it was invalid, because of s. 854. There is a distinction in IPA between “development” and “use”. For a discussion of the effect of s. 854 see Marshall v Averay 2007 QPELR 137 at 148-9.

1. Section 4.1.33B was discussed in Octopus Media Pty Ltd v Brisbane City Council [2006] QPELR 678. There was a proposal to attach a large advertising sign to the side of the building containing Jo-Jo’s restaurant, in the Queen Street Mall. There was no doubt that the section applied, because the advertising sign was an “other structure permitted by the planning scheme”. See para 10 of the judgment.

1. More helpful is the earlier decision of this Court in McDonalds Properties (Australia) Pty Ltd v Maroochy Shire Council [1998] 1 QPELR 3. There, a McDonalds restaurant was proposed at Nambour. McDonalds wanted to erect a number of signs. There were objections to them. The planning scheme did not deal with the erection of advertising signs. However, the Council had passed Local Law 11 (Control of Advertisements).

1. The Council refused the application to put up two of the signs. McDonalds then appealed to this Court against that decision. It asserted that the right to appeal was allowed because of the provisions of s 7.1(1)(b) of the repealed P & E Act (above).

1. The Council raised a preliminary point. It said that the appeal was beyond the jurisdiction of this Court. It submitted that putting up the signs would be “the erection of a structure”, but not one “permitted by the planning scheme” as the planning scheme was silent about that.

1. On behalf of McDonalds, it was submitted that it was necessary to look at the desired use of the premises – a fast food shop described as a “catering shop” in the plan. That use necessarily involved the erection of signs.

1. The judge’s conclusion was expressed this way:

“For the Council’s argument to succeed the application would have to be viewed as completely divorced from the development which McDonalds intends for the subject land. That is, the establishment of a catering shop. If it is right to do that, then the application can be said to have been simply to erect a structure (the signs) and to have simply been made under the Local Law. It is not something which is permitted under the planning scheme.

That seems to me to be an unnaturally narrow view of the matter. The reality of the situation is that the signs were only applied for because of the proposal to build a fast food shop. The two matters are intimately and necessarily connected. So the decision to allow or disallow the signs was ‘with respect to’ the proposed permitted use under the planning scheme. The phrase ‘with respect to’ is of course given the widest interpretation….

I concluded therefore that this Court has jurisdiction to decide the appeal…”

Conclusions

1. Section 4.1.33B is headed “Appeals against local laws”. However, that is an incomplete title. The appeals are necessarily against decisions of Council. That is what the section itself says. It is expressed in a compact and awkward way, but its meaning is clear enough. Its focus is on the decision, including conditions, of the local government. That decision, or the conditions, must arise because Council is applying a local law. The decision or conditions have to be about the use of premises, or the erection of a building or other structure permitted by the planning scheme.

1. That is to say, the expression “about the use of premises…” does not describe the local law, but the nature of the Council’s decision or conditions. The intention of the legislation is to describe the categories of decisions which may be appealed. Not every NALL decision can be appealed.

1. Here, is the decision, and the conditions, about “the use of premises”? That makes the appeal focus on the matter that is in dispute, rather than upon the nature of the local law itself.

1. According to the definition of “premises” in IPA, it includes land.

1. Home Design wants to remove the stump, and build a tennis court. The Council agrees about the removal of the stump, but wants it replaced with a new fig tree. That may live and grow for very many years.  It will mean that a tennis court cannot be built. The land is used for residential purposes. Plants and trees are an everyday aspect of that residential use. Therefore, the decision, and the conditions, are very much about the use of the land.

1. Such an approach is consistent with that taken in the McDonalds Properties case. It also avoids the situation which the Council is contending for – that the appellant should have no right of appeal.

1. The application is dismissed.