Jezreel Pty Ltd v Brisbane City Council
[2000] QPEC 51
•8/09/2000
PLANNING AND ENVIRONMENT COURT OF
QUEENSLAND
CITATION: Jezreel Pty. Ltd. v. Brisbane City Council & Anor [2000]
QPE 051PARTIES: JEZREEL PTY LTD
Applicant
v
BRISBANE CITY COUNCIL
First Respondent
and
CORNERSTONE PROPERTIES LTD
Second RespondentFILE NO/S: Application No. 2971 of 2000 and Appeal No. 2613 of 2000 DIVISION: Planning and Environment Court PROCEEDING: Application for declaratory relief ORIGINATING Brisbane COURT: DELIVERED ON: 8th September 2000 DELIVERED AT: Brisbane HEARING DATE: 18th. August 2000 JUDGE: Judge Quirk ORDER: Application and Appeal dismissed. CATCHWORDS: COUNSEL: Mr. J Haydon for the appellant.
Mr. M Hinson SC for the first respondent.
Mr C. Hughes for the second respondent.SOLICITORS: Nicol Robinson Halletts for the appellant.
Brisbane City Legal Practice for the first respondent.
Phillips Fox Lawyers for the second respondent.
In this matter Jezreel Pty Ltd has lodged both an appeal and an application for
declaratory relief in respect of a decision by the respondent Brisbane City Council
to approve an application for a development permit for a material change of use of
land at the northern end of Turbot Street.
For the purposes of disposing of these proceedings it is sufficient to say that the
proposed development was for a shopping centre, business premises and ancillary
carparking. In the Town Plan the subject land is included in the Central Business
zone.
A number of rulings were sought. I will consider each of them separately dealing
firstly with those raised in the originating application.
Was the application to the Council competent?
The contention of Jezreel that the application was not lawfully made appears to be
based on the assertion that certain provisions of the Town Plan do not allow, in the
Central Business zone, carparking to the extent that is provided by the proposal.
Attention is drawn to sections of the Town Plan which provide as follows:
“18.5 Vehicle Parking within a Site
18.5.1
It shall be a requirement of every development that at all times while the use continues there shall be provided a car parking area on the site –
(a) in a case where the site is within the Central Business Zone, not more than one car space for every 200 square metres of gross floor area; or (b) in any other case in accordance with the requirements in Column 2 of Table 18.2 as they apply to the purpose specified in Column 1 of that Table. 18.5.1A Council may at is discretion relax the requirement of Paragraph 18.5.1(a) where the development is for a residential purpose”.
The carparking intended here exceeds the standard of one space for every 200
square metres of gross floor area and is “incidental to and necessarily associated
with” the shopping centre and business premises. That is made clear by condition 45 of the Council’s approval which requires that the carpark does not operate as a
public carpark.
I have some difficulty with the proposition that an application for some form of
development inconsistent with a planning scheme is an incompetent application.
While this may, in many cases, provide a strong reason for refusing such an
application, the application itself (provided other relevant requirements are met) is
nevertheless an application which must be considered and decided. If there is
anything in the point it would relate to the validity of the Council’s approval of the
application.
It is true that there is nothing in these express requirements which would allow a
carpark of the kind here proposed. This however does not stand in the way of the
Council’s decision conditioning the approval in a way that is inconsistent with those
requirements if, on a proper consideration of the proposal itself, such a condition is
warranted. That much is made clear by s.3.5.30 of the Integrated Planning Act
especially in sub-s. (2). (see also Roy Summerville Surveys Pty Ltd v Logan City
Council (1991) 74 LGRA 104; Queensland Fencing Supplies Pty Ltd v Logan City
Council (1996) QPELR 233). The material indicates that this is what occurred and
I would not rule the Council’s decision invalid on that ground.
The Acknowledgment Notice
Because of the proposal’s intention to provide the ancillary carparking, under the
Integrated Planning Act it required both code assessment and impact assessment. It
was submitted that, by reason of s.3.2.3.(2)(c), the acknowledgment notice was required to indicate that an aspect of the development application required code
assessment and to identify the relevant codes. It did not do so. It was pointed out
that by reason of s.3.2.8(3) the acknowledgment notice is part of the “supporting
material” and the result was that the public were not fully informed regarding all
aspects of the application.
This application however is one which is governed by Division 8 of Chapter 6 of
the Act. Section 6.1.28(3)c modifies the operation of s.3.2.(3)(2)c providing: “Despite s.3.2.(3)(2)c, any acknowledgment notice for theapplication need not refer to codes”.
It was pointed out by senior counsel for the respondent that no “applicable codes”
(as defined by s.6.1.1 in Schedule 10) apply to this case and there is no relevant
difference between the assessment procedures for impact and code assessment as
prescribed by the Act.
The acknowledgment notice (exhibit LLGM4 to the affidavit of Linda Gaye
Morris) appears to be otherwise compliant with s.6.1.28 and there would appear to
be nothing in the point made against it. In any event the supporting material
provided ample detail in respect of the proposal and the point taken could not
provide, in my view of the matter, a sufficient basis for an exercise of discretion in
favour of a declaration that the Council decision was void.
The “Public Scrutiny” of the application
This is provided for by s.3.2.8 of the Act. The allegation that the procedures
adopted here were deficient depends upon a claim that a report on need and demand
dated 24 February 2000 by the applicant’s consultants (and some other material
identified in paragraph 13(a) of the originating application), which was part of the
“supporting material” as defined by s.3.2.8(3), was missing during the relevant
period.
Mr Steven Sorbello (a principal of Jezreel) inspected the available material on 10
March 2000. As he explained in his affidavit he was, on that occasion, provided
with only a manilla folder. He visited the Council’s offices again on 14 April and
was given, as well as the manilla folder, additional material some of which was in a
black box. He was not given this material which included the abovementioned
report (and which I will call the “missing material”) on 10 March.
The material before me does not explain why this happened. This material
indicates that when others visited the Council offices during the “public scrutiny”
period the “missing material” was available and provided to them. I refer in that
context to affidavits of Messrs Priddle and Morley and to the content of a number
of submissions that were made which indicate that the submitters had perused the
report on need and demand.
I have no reason to disbelieve what Mr Sorbello has said but can only attribute his
failure to see the “missing material” on 10 March to some misadventure. It was
certainly not a matter to which the applicant Cornerstone Properties Ltd made any contribution as it is undisputed that the missing material was provided by it to the
Council as required.
As I have indicated, other material shows that, during the relevant period of “public
scrutiny” the relevant material was where it should have been and available for
inspection as required by the Act. I can think of no plausible reason for any
deliberate attempt (by anyone) to frustrate the Act’s intention in this context and am
not prepared to hold that the “public scrutiny” procedures have miscarried in this
case in a way that would render the Council’s decision void.
Was the Council’s decision otherwise invalid?
In this context it was said that the Council’s decision involved “jurisdictional error”
(Craig v South Australia (1995) 184 CLR 163) in that, in reaching its decision, the
Council failed to take into account a matter that it should have or that it was a
decision so unreasonable that no reasonable Council could have reached that
decision (Parramatta City Council v Pestell (1972) 128 CLR 305 at 327).
Attention was drawn to the Council’s adoption of a recommendation of the Urban
Planning Committee that included, in part, the following statement:
“In the light of the site’s position within the Central Business District an assessment of the need for the development is not appropriate. A shopping centre is an ‘as of right’ use in this location”.
It was pointed out that, even in respect of an application which is code assessable, it
is open to the Council to impose conditions that limit the floor space of a shopping centre (a matter in which Jezreel, a commercial competitor, is particularly
interested).
Jezreel’s contention that a relevant matter had been ignored was based on a
submission that s.24.3.3 of the Town Plan made need and demand relevant and
necessary matters for consideration of this application. There are a number of
weaknesses in this submission. Section 24.3.3 certainly sets out to identify “matters
to be considered in deciding an application (for the notification of conditions)”.
However the section’s introductory words contain important words of qualification.
These words are:
“The following matters, to the extent they are relevant to the proposal the subject of an application, shall be considered by the Council in deciding the application”.
Furthermore, within s.24.3.3 there is no reference to “need” although “economic
impact” is mentioned in sub-s.(e)(vi). The argument of Jezreel seems to suppose
that these concepts are co-extensive but this is not so. A long line of cases in this
court established that “need” (in a planning sense), a consideration relevant to an
application to amend a planning scheme, involved a demonstration that it was in the
community’s interests that the scheme should be so amended. Section 4.4.(3) of the
now repealed Local Government (Planning and Environment) Act, in identifying
the considerations relevant to a proposed planning scheme amendment refers, in
(3)(b) to:
“The balance of zones in the planning scheme area as a whole or that part of that area within which the relevant land is situated and the need for the proposed planning scheme amendment”.
In appropriate circumstances economic impact may be a matter which bears upon
the community’s interests and a relevant factor in the consideration of “need”. However, as stated, the concepts are by no means one and the same. Whatever
might have prompted the observation of the Urban Planning Committee, it is
perfectly clear that the Council, in a specific “information request” sought details of
any economic impact of the proposal. The response was the report of Jebb Holland
and de Massey (a lengthy and comprehensive study) which was prepared and
provided to the Council. This study has already been referred to in the discussion
relating to the “missing material”. In those circumstances, to suggest that economic
impact study was a matter ignored by the Council in its consideration of this
application is simply unrealistic and I would not be prepared to rule that any
“jurisdictional error” had occurred on that basis.
Accordingly, I am of the opinion that the matters raised in the originating
application would not support a declaration that the relevant Council decision was
void.
There is the further matter of the Court’s discretion to grant or refuse relief in cases
of this kind. I had occasion to discuss this in a decision given only recently in
Queensland Investment Corporation and John Clifford Longhurst v Gold Coast
City Council & Anor. (2566 of 2000; 7 August 2000). For the reasons therein given
I believe that, having regard to the express purposes of the Integrated Planning Act,
clear and serious reasons for the making of declarations that have the effect of
depriving the holder of a development permit of the rights given thereby are
required. The applicant’s case in this matter falls well short of that point.
The other matter in respect of which I am asked to rule is Jezreel’s status as an
appellant in Appeal No. 2613 of 2000. This in turn depends upon its status as a
submitter under the relevant provisions of the Integrated Planning Act.
In this context Jezreel relies upon a submission lodged by McKerrell Lynch dated
24 March and received by the Council on 27 March within the prescribed time.
This submission (which can be found as part of LGM12) makes no reference
whatsoever to Jezreel but states only that a “formal objection” is lodged “on behalf
of our client”. The matter was further complicated by a memo from McKerrell
Lynch (LGM14) dated 15 May which indicated:
“Further to the submission lodged on behalf of our client Sustanuto Pty Ltd on 24 March 2000, we respectfully submit the following information for your consideration”.
It is now stated (affidavit of Craig Mercer) that the reference to Sustanuto Pty Ltd
was an error and that, at all material times, McKerrell Lynch was acting as
consultant to Jezreel.
I was referred to a number of decided cases in which the effect of an agent’s acting
for a principal in matters of this kind was examined. I have had particular regard to
the decision of the Court of Appeal in Vincent v Johnstone Shire Council (1997) 1
Qd. R. 554 in which an agent’s capacity to sign an objection on behalf of a principal
was considered. Different legislation governed that matter and it is noteworthy that,
in that case, although the objection was signed by the agent the principals were
identified.
The court emphasized that one must look to the relevant legislation in dealing with
difficulties of this kind and in that case held:
“What must be done is to make clear that the execution (by the agent) is on behalf of the principal and that seemed to have been done in that matter.”
This case is somewhat difficult. The relevant legislation provisions are to be found
in the Integrated Planning Act. Section 4.1.28 gives the relevant right of appeal to
a “submitter”. Schedule 10 defines “submitter” in this way:
“For a development application, means a person who makes a
properly made submission about the application”.“Properly made submission” is also specifically defined in Schedule 10 and is one
which (inter alia):
“(c) states the name and address of each person who made the
submission”.The relevant letter from McKerrell Lynch does not (as far as Jezreel is concerned)
do that. It goes no further than indicating that the submission is made on behalf of
some undisclosed principal. I am not satisfied that that amounts to compliance with
the Act and find that no “properly made submission” was made by Jezreel.
Accordingly no right of appeal pursuant to s.4.1.28 has arisen. If this was a matter
where it might have been done (s.4.1.53), in view of the limited area of the
application to which the right of appeal applied (s.4.1.28(4)), and the likely impact
of carparking adequacy on the interests of Jezreel, I would not have exercised a
discretion in favour of allowing the appeal to proceed.
For these reasons both the originating application and the appeal must be dismissed.
0
3
0