Kangaroo Point Residents Assoc v Brisbane City Council
[2001] QPEC 6
•14/02/2001
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION: Kangaroo Point Residents Assoc v BCC & Anor [2001] QPE
006PARTIES: KANGAROO POINT RESIDENTS ASSOCIATION & ORS
Appellants
v
BRISBANE CITY COUNCIL
Respondent
and
PRINCIPAL PROPERTIES PTY LTD (ACN 072 279 675)
Co-respondentKANGAROO POINT RESIDENTS ASSOCIATION & ORS
Applicants
v
BRISBANE CITY COUNCIL
and
PRINCIPAL PROPERTIES PTY LTD (ACN 072 279 675)
Second RespondentFILE NO/S: 4310 of 2000
and
4589 of 2000DIVISION: Planning and Environment Court PROCEEDING: Submitter Appeal – preliminary point ORIGINATING Brisbane COURT: DELIVERED ON: 14 February 2001 DELIVERED AT: Brisbane HEARING DATE: 28 and 29 November, 2000, 23 and 24 January, 2001 JUDGE: Judge Quirk ORDER: Application refused CATCHWORDS: COUNSEL: Mr R. Bowie for the appellants
Mr M. Rackemann for the respondent
Mr P. Lyons QC for the co-respondentSOLICITORS: Minter Ellison for the appellants
Brisbane City Legal Practice for the respondent
Nicol Robinson Halletts for the co-respondent
These matters concerned an application for development approval for an apartment
building complex on the riverfront at Kangaroo Point. The application (in a
modified form) was approved by the Council and some of a large number of
submitters have appealed against that decision. That appeal is Number 4310 of
2000.
In Originating Application 4589 of 2000, the appellants have sought declaratory
relief about the procedures by which the application was dealt with and, in
particular, attention focussed upon the decision of the Assessment Manager’s
delegate (notwithstanding changes to the form of the development) to proceed to
consider the matter without further resort to the “notification stage” under Part 4 of
Chapter 3 of the Integrated Planning Act.
In so doing, the Assessment Manager’s delegate, Mr Jardine, exercised the power
found in s.3.2.10 which provides:
“The notification stage does not apply to a changed application if –
(a) The original application involved impact assessment; and (b)
The notification stage for the original application had been completed when the IDAS process stopped; and
(c)
The Assessment Manager is satisfied the change to the application, if the notification stage were to apply to the change, would not be likely to attract a submission objecting to the thing comprising the change.”
Material relied upon in the application for declaratory relief was filed in the appeal
file and it was agreed that the matter could be dealt with as a preliminary point in
the appeal because, if the applicants were successful, the appeal would have to be
allowed and the relevant approval set aside.
We are not here concerned with the merits of the appellant’s objections to the
proposal or whether the substance of those objections remain notwithstanding the
changes to the proposal that have occurred. It is important to keep in mind that
s.3.2.10 is enlivened not by the existence of a situation which (in the event of
challenge) is open to re-examination in a factual sense but by the formation of an
opinion by the Assessment Manager amounting to satisfaction that a particular
situation exists.
That situation was that, if the notification stage was repeated, the change to the
application would not be likely to attract a submission objecting to the thing
comprising the change.
Read sensibly the subsection calls for a comparative assessment of the original and
the changed proposal. What really must be decided by the Assessment Manager is
whether the changed proposal would be likely to provoke objection about a
potential impact of the proposal that would not have been reasonably apparent to
those who examined the original application.
In this context I believe “impact” should not be looked at in any narrow way. To
explain this I refer to an aspect of this matter that received a good deal of attention,
namely the interruption of river views. The original proposal attracted a good deal of adverse submission concerning this matter. The re-design has sought to
ameliorate those concerns. But the fact that those who examined the original
proposal (and objected in respect of this question) remain dissatisfied with the result
would not, in my view, prevent the Assessment Manager being satisfied as required
by s.3.2.10(c). If the notification stage were repeated, adverse submissions on the
topic of interruption of river views would, in all likelihood, once more be received
and again considered by Council with little likelihood of any different outcome.
The same could be said for such matters as intensity of development, invasion of
privacy, traffic generation etc.
Relying on authority such as Australian Heritage Commission v Mt Isa Mines Ltd
(1997) 187 CLR 297; Waterford v The Commonwealth (1987) 163 CLR 54 and
Australian Broadcasting Tribunal v Bond (1991) 70 CLR 321 (cf Enfield v
Development Assessment Commission (2000) 74 ALJR 490) senior counsel for the
co-respondent submitted that the court would not be inclined to interfere with Mr
Jardine’s satisfaction even if it could be demonstrated that he had made some
mistake of fact. He added that evidence from an individual that he would have
made fresh objection to the change proposal is irrelevant to the question that the
court must consider.
I believe that the relevant principle was usefully stated by His Honour Judge Skoien
in Coles Myer Properties Limited v Council of the City of Brisbane; Westfield
Limited v The Council of the City of Brisbane (1997) QPELR 337 at p. 338: “The opinion of the Council must be accepted unless it can be shown to have been one that no reasonable Council would have formed or that it was based on irrelevant considerations or that in some other way it was unjustifiable. That is the test here (and see Parramatta City Council v Pestell (1972) 128 CLR 306 at 323 and Foley v Padley (1983) 154 CLR 349 at 352/353)”
Although it is probably inherent in what His Honour said I would add that Mr
Jardine’s opinion could be set aside if it was shown that, as a matter of law, he
misunderstood the task for which s.3.2.10(c) set for him.
In the originating application filed on 14 November 2000, there are six stated
grounds upon which the relief was sought. Of these all other than Ground 4 were
narrative in nature and uncontroversial.
Ground 4 stated:
“The changes sought to be made to the application by the substitution of the amended plans for the plans which form part of the application are such that, if the notification stage were to apply to the changes, would be likely to attract a submission objecting to the things comprising the changes.”
In my view if, on the evidence, this was established to the Court’s satisfaction on
the balance of probabilities, it would not provide a sufficient basis for the relief
sought. It would involve no more than the Court’s substituting its own view for that
of the Assessment Manager’s delegate.
Mr Jardine gave evidence and re-affirmed the opinion which he had earlier reached.
His evidence made it perfectly clear that he understood what s.3.2.10(c) required of
him and his evidence detailed how he approached the matter.
I am not satisfied on the evidence that matters that were raised by the appellants and
discussed at great length raised any planning issue that was not considered by Mr
Jardine in consultation with those that assisted him. Indeed further material placed before the court by the co-respondent’s architect appeared to reinforce the views
which he had earlier formed.
Details of the original proposal and the modified proposal are found in the
voluminous written assessments and drawings placed before the court. That Mr
Jardine’s assessment was one which was reasonably open to him gained support
from the views expressed by Professor Brannock an experienced town planning
consultant who examined the matter in close and careful detail.
It is true that contrary views were expressed by Mr Buckley also a very experienced
town planning consultant. This demonstrates only that in difficult matters of this
kind opinions may differ and fall short of establishing that the opinion formed by
Mr Jardine was one that no reasonable officer in his position could have formed or
that it was based on some irrelevant consideration.
A number of the appellants were called to give evidence. It is clear that they were
against the original proposal and remain of that view notwithstanding the changes
that have occurred. Mr Mowbray is the owner and resident of residential premises
immediately to the east of the subject land. He has always been concerned at the
prospect of the proximity of buildings of considerable bulk and building form and
invasion of his privacy.
Whether the removal of the “condominium block” adjacent to the river and a re-
design of the tower block beside Mr Mowbray’s home will represent a preferable
outcome in amenity terms is a matter in respect of which opinions obviously differ
but it is clearly one to which Mr Jardine turned his mind (and concluded that, from Mr Mowbray’s perspective, the overall result was better). On the evidence given I
am not persuaded that his conclusion was one not reasonably open to him although
it is a matter which will be re-explored fully when the appeal proper is heard and
Mr Mowbray (with any experts he chooses to call) will have an opportunity to state
their case.
Mrs Daly, who resides at 102A-106 Lambert Street expressed concerns about
interference with her views to the river and her outlook generally. The evidence
supports the suggestion that, as far as views towards the river are concerned, her
position has improved. She complained however that, in the modified proposal, a
garbage loading area has been brought closer to her property and that she has been
exposed to greater risk of noise and vehicle movement.
However it was not irrelevant for Mr Jardine to take into account that, in the earlier
proposal, a pool and outdoor entertainment area was close to Mrs Daly. To suppose
(as Mr Jardine did) that the terrain and relative levels of the garbage collection area
and associated driveway would substantially reduce any adverse amenity impact did
not appear to be unreasonable. The evidence fell well short of demonstrating that
the conclusion which he reached was unsustainable.
One matter to which reference was made in the evidence was the existence of an
easement over the subject land enjoyed by the Daly properties. In her original
submissions it was said on Mrs Daly’s behalf that “my clients express their current
legal rights shall be reflected in any development approvals affecting easement B”.
Mr Jardine indicated that he was aware of her concerns in that respect and sought to
ensure that those rights were respected.
Apparently a drafting error in the modified proposal resulted in some apparent
infringement of those rights but it was a matter that was readily amenable to
correction. In any event, in granting planning consent, the planning authority and
the court must respect the rights which are involved in the easement and that it is a
matter which is really beside the point which is determinative of this application.
Mrs Johnson, who resides at 40 Castlebar Street, while also referring to the garbage
collection point, expressed concerns about the replacement of an outdoor parking
and turn around area (with some landscaping) by a covered carpark upon which
there will be a tennis court (daytime use only).
Mrs Johnson explained that she values her privacy and the greenery about her
house. While the views about the relative impact of this aspect of the revision of
the proposal were not universally shared (cf the opinions of Brannock and Buckley)
the evidence did not show that Mr Jardine’s assessment in that respect was
unjustifiable or otherwise erroneous.
A Mr Paul Duncan who is the owner of a unit at 48 O’Connell Street gave
evidence. He does not reside in the unit which he rents out. He did not make an
adverse submission about the original application because he was unaware of it.
His principal concern is the extent to which views to the river from his unit will be
interrupted by the proposal both in its original and modified form and the effect that
this will have on the unit’s value and attraction to potential tenants.
Although he was not prepared to accept that the modified proposal represents a
better result in terms of outlook it is certainly arguable that his submission would
have focussed upon this aspect of the proposal had he taken the opportunity to make
it during the notification period. His evidence did not undermine the opinion
formed by Mr Jardine.
In the course of the evidence reference was made to certain provisions in the
relevant planning documents. Whether these provisions should stand in the way of
the modified proposal is a matter in respect of which Mr Jardine, as the Assessment
Manager’s delegate, concluded in favour of the proposal. Whether his views are
ones which the court will ultimately share is a matter which will be fully explored
at the hearing of the appeal. I am not persuaded that in so concluding, he fell into
any error in law which provides a basis for setting aside the opinion which he
formed pursuant to s.3.2.10(c). Accordingly I have concluded that I should not
grant the relief sought by the appellants at this point.
Even if I was wrong in my view that there was no basis for making the declaration
sought, I believe there are good reasons for a discretionary refusal to make such
declarations. The applicants (in 4589/2000) are appellants in the appeal which is on
foot. All of the matters raised before me on this occasion can be thoroughly
explored in evidence at the hearing of the appeal. Little practical advantage (other
than delay) would be served in remitting the matter for further consideration by the
Assessment Manager under s.3.2.10(c) or, for that matter, to the notification stage.
It is true that Mr Duncan is not a party to the appeal but, if he wishes to put his
views before the court he may be called to give evidence as he did on this occasion. One of the stated purposes of the Act is that the decision making process should be
co-ordinated and efficient (s.1.2.3). That objective would not, in my view, be
advanced by granting the relief sought on this occasion.
For these reasons Application 4589/2000 must be refused. No further order in
Appeal No. 4310/2000 is required and the appeal now proceed to hearing.
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