Livingstone Shire Council v Brian Hooper & M3 Architecture

[2003] QPEC 63

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Livingstone Shire Council v Brian Hooper & M3 Architecture (Architects in Association) & Ors [2003] QPEC 063

PARTIES:

LIVINGSTONE SHIRE COUNCIL
Applicant

v

BRIAN HOOPER & M3ARCHITECTURE (ARCHITECTS IN ASSOCIATION)
First Respondent
and
CAPRICORN COAST INVESTMENTS PTY LTD AS TRUSTEE FOR THE ANZAC PARADE UNIT TRUST
Second Respondent
and
BRIEN WILKINS (COASTLINE BUILDING APPROVALS)
Third Respondent

FILE NO/S:

BD2625 of 2003

DIVISION:

Planning and Environment

PROCEEDING:

Submitter Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

14  November 2003

DELIVERED AT:

Brisbane

HEARING DATE:

17, 18, 19, 22, 26 September, 6 October 2003

JUDGE:

Judge Robin QC

ORDER:

Private building certifier’s decision to approve development application declared invalid, development approval cancelled

CATCHWORDS:

Application by local government for declaration of invalidity of private building certifier’s decision to approve development application for 12 storey building at Yeppoon – developer asserted proposal was for an accommodation building (as of right use) as “serviced apartment(s)” – applicant asserted proposal was a multiple dwelling (a use requiring Council consent) – proper characterisation of proposal considered – whether applicant (which wrongly believed a local Planning Policy effectively established a height limit) was seeking to do indirectly what it could not do directly – whether private certifier decided application prematurely before other “approvals” had been obtained in breach of s.5.3.5(4) of the IPA and of s 56 of the Standard Building Regulation 1993 and in breach of the requirement of s 22(2) of the Standard Building Regulation of imposition of conditions (a) and (b) – purported certificates under s 23 of Standard BuildingRegulation ineffective as there was no “certified information” – no engineering plans were in existence – private building certifier failed to involve advice agency (Queensland Fire and Rescue Service) in decision making process – insufficient information available to assess proposed building against the Building Code of Australia, as required by the Regulation – whether declaration should be refused on discretionary grounds- acceptability of “landscaping” at podium level considered – whether site cover excessive - meaning of “deep planting” – Integrated Planning Act 1997, s 4.1.5A, s 4.1, s 4.1.22, s. 5.3.5, s 6.1.23(1A), Standard Building Regulation 1993, s 22 and 23, s 56.

COUNSEL:

Mr Lyons QC and Mr J Davies for the Applicant
Mr D Gore QC for the First  and Second Respondents
Mr W Cochrane for the Third Respondent

SOLICITORS:

King & Co for the Applicant
McCullough Robertson Lawyers for the First and Second Respondents
MacDonnells for the Third Respondent

The parties and the background to the application

1. The first respondents, architects, made an IDAS Development Application in respect of a proposed 12 storey building on a site at Yeppoon extending between Anzac Parade and Barry Street.  The second respondent signed the application as land owner, a note being appended that additional areas were included, including sites under contract.  The vendors (AA and DA Power) produced a separate “Owner Authority” consenting to the making of the application to the third respondent, trading as Coastline Building Approvals and to its lodging and signing any Council or State Government forms necessary for submission.  The third respondent is a private building certifier, empowered to assess certain development applications under s 5.3.1.ff of the Integrated Planning Act 1997 (IPA).  In this application to the court, the Council challenges the validity of the development approval contained in a Decision Notice issued by the third respondent.

1. The affidavit of Mr McKone, the Council’s Strategic Assets and Compliance Engineer shows that at a Development Proposal Forum on 3 December 2002, which he and others, including Mr Hooper and “Mr Stephenson” (very likely a misnomer for Mr John Stephens)  attended, discussion occurred of the following proposal:

An eight (8) storey tower mixed use development containing a basement 44 bay car park; ground floor including 8 shops and catering shop, al fresco footpath dining area, lift and stair well; podium floor with garden terrace and swimming pool, and five apartments, 5 floors each containing 3x3 bedroom and 2x2 bedroom apartments.

The development would be designed with consideration given to surrounding land uses and built forms.  The access would be from Barry Street.  Only the ground floor is proposed to be constructed to boundary lines.  The apartments would be aimed at holiday makers and complement tourism development.”

The minutes of the meeting record that the land is zoned Tourist, Business and Residential and that “Advice Given” included the following:

“Planning

·The Council is in the process of reviewing its planning scheme in accordance with the Integrated Planning Act. It is anticipated that the proposed new planning scheme will be available for public comment during the first half of 2003. In the meantime, the planning instrument remains the Transitional Planning Scheme.

·A Visual Quality & Multi-level Study has been undertaken and once approved will form part of the new Planning Scheme.  The recommendations from the Study may be referred to in assessing the development.  The Study includes reference to character and themes for future development, building height, view corridors and overshadowing.

·Building height is a controversial issue within the community and until Council has defined, approved and articulated a clear policy on building height in association with the new Planning Scheme the proposal to construct buildings higher than set out in the Local Planning Policy No. 5.16 would be assessed in accordance with the current Planning Scheme provisions and legislation governing land use impact.”

1. At the Meeting, Mr McKone provided certain details regarding water supply to the site.  There was another discussion regarding technical details to do with the water service and with Mr Jones representing the developer, on 17 June 2003, in the course of which Mr McKone raised concerns about the adequacy of water supply, and in particular from the point of view of ascertaining the requirements of the Queensland Fire and Rescue Service (QFRS).  Mr McKone explained that all this was:

“... so that an assessment could be made on whether the existing water supply to the site was sufficient or, alternatively, what site-specific requirements were necessary.  At the conclusion of our discussions, I sought to confirm with Mr Jones how many storeys the proposed development would be and he told me this was ‘privileged information’ that would be released when the development application was lodged.  As a result of these telephone discussions, I was left with the firm impression that a development application seeking approval for the proposed development would be lodged with the Council in due course.  Nothing was said by Mr Jones during the course of our discussions to suggest otherwise.”

1. Mr McKone continued to hold that impression, although the justification for it is not spelt out.  The third respondent had already been engaged to assess the application.  Mr McKone says that as at 4 September 2003 the Council has received a total of 1,196 submissions regarding the proposed development since the details of it first became public knowledge:

“Of these 1196 submissions, 1195 are not in support of the proposed development.”

1. It is against that background that the Council, by its Further Amended Originating Application (in terms of Exhibit 1) seeks the following relief:

“1.A declaration that the IDAS Development Application dated 16 May 2003, made by the First Respondent as Applicant, on behalf of the Second Respondent, to the Third Respondent as private certifier, for assessment against the Building Act of a proposed development on land described as Lots 1 and 2 on RP606662 and Lots 3, 8 and 9 on RP604738 is  invalid in that the application failed to include Lots 6 and 7 on RP 604738, upon which part of the development, the subject of the application, is to be constructed.

1(A)A declaration that the Request to change an existing approval dated 1 August 2003 made by the First Respondent as Applicant, on behalf of the Second Respondent, to the Third Respondent as private certifier, for assessment against the Building Act of a proposed development on land described as Lots 1 and 2 on RP606662 and Lots 3, 8 and 9 on RP604738 is invalid in that the application failed to include Lots 6 and 76 on RP604738, upon which part of the development, the subject of the application, is to be constructed.

2.A declaration that a purported “Approval for building work to commence contained in Decision Notice 3961 made on 4 July 2003, and given by the Third Respondent to the First Respondent, referable to Lots 1 and 2 on RP606662 and Lots 3, 8 and 9 on RP604738, County of Livingstone, Parish of Yeppoon, and purporting to approve the construction of a building Classes 3,5,6 and 7A, is invalid.

3.A declaration that the use proposed by the First Respondent constitutes, inter alia, a “multiple dwelling” within the meaning of that term as used in the Planning Scheme for the Shire of Livingstone.

4.An order cancelling the Development Approval.”

The application has undergone a series of changes, attributable to the Council’s having been kept in ignorance of matters, and having itself engaged in a scattergun approach, in which certain grounds of challenge to the third respondent’s decision in an application based on s 4.1.21 of the IPA have been abandoned, because, on mature consideration, they were seen to be untenable.  When the application was originally filed on 8 August 2003, the Council did not know that on 4 August 2003 the third respondent had made a formal decision approving changes to the plans of the proposed building, with a view to dealing with the Council’s complaint that the building, as originally designed and approved, impermissibly cast shadow on the beach.  Whether or not the point would ever have availed the Council, it was not persisted in. The Council did not proceed with its assertion that the failure to include Lots 6 and 7 on RP604738 at any stage vitiated anything done by the third respondent, or its assertion that the relevant parcels of land should have been amalgamated.

1. More significantly, the Council has abandoned reliance on the following of the grounds originally set out in its application:

“The development approved by the approval of building work contained in Decision Notice 3961 does not comply with the provisions of the Transitional Planning Scheme in force at the time the Application was made, particulars of which are as follows:

(i)  Local Planning Policy Number 5.16 – Building Height provided:

“6.0  IMPLEMENTATION

Premises shall not be erected and used for any purpose in the zone shown on the Height Control Table below so as to exceed the corresponding height in storeys and height in metres regardless of whether Councils town planning consent approval is required or not.

7.0HEIGHT CONTROL TABLE

ZONE	HEIGHT IN STOREYS	HEIGHT IN METRES
... Tourist Business and Residential	3	12
...	...	...

The proposal is for a 12-storey building with a height in metres of some 38.6 metres.”

Some insight into the reasons for that abandonment may be found from Concore Pty Ltd v Mulgrave Shire Council (1988) 2 Qd R 395 and National Land Co Ltd v Cairns City Council (1988) QPLR 17.

1. The Council at this stage accepts that in the relevant (Tourist Business and Residential) Zone the Column III Permitted Uses include “Accommodation Building (above the ground floor provided that the ground floor is occupied by a permitted use)”, generating an as of right use in respect of which there is no height restriction. Formerly there was, in s 7.3 of The Planning Scheme for the Shire of Livingstone, which provided that:

“7.3.7    Premises shall not exceed sixteen (16) storeys in height; provided that where the Council grants consent to a restaurant on the ground storey then such building or other structure may have a height of not more than seventeen (17) storeys.”

That provision was deleted by the Planning Schemes (Approval of Amendments) Order (No 103) 1993, gazetted and commencing on 16 July 1993: Queensland Government Gazette No 80 1356.  The situation was attempted to be dealt with by adoption of the Local Planning Policy set out above.  It was common ground that the policy has relevance to a permissible use, for which Council consent is required, but not for a permitted (as of right) use.  The Council has moved to plug what it sees as a gap by a temporary local planning instrument (Exhibit 19, gazetted 8 August 2003; broadly, this limits building height in the Central Business Zone to 15 metres and in other zones to 12 metres).  This instrument, tendered by Mr Gore QC, who appeared for the first and second respondents,  goes some distance towards explaining what the Council is up to in the application, but otherwise has no relevance. 

Accommodation Building or Multiple Dwelling

1. The respondents’ case is that the proposal is for an “Accommodation Building” within the Scheme definition:

“Any premises used or intended for use as a boarding house, guest house, hostel, unlicensed hotel, unlicensed residential club, serviced apartment, serviced room.  The term does not include a caravan park, duplex, dwelling house, hospital, hotel, institution, motel or multiple dwelling as herein defined;”

The Council’s case is that the relevant category is:

“ ‘Multiple Dwelling’ – Any premises which comprise or are intended to comprise more than two dwelling units on any one allotment.  The term includes flats, home units, retirement villages, town houses and such outbuildings, swimming pools, tennis courts and private recreation areas as are incidental to or necessarily associated with the use but does not include an accommodation building, hotel or motel as herein defined;”

1. The definition of dwelling unit must be consulted:

“ ‘Dwelling Unit’ – Any premises used or intended for use for the exclusive residential use of one household;”

1. For many purposes, accommodation buildings and multiple dwellings are treated in the same way by the planning arrangements, for example in respect of parking requirements.  In the planning arrangements it is somewhat special to find an accommodation building listed as a permitted use.  In the Village Residential Zone, it is a permissible use, likewise in the Central Business Zone, but only for an “Accommodation building (above the ground floor)”.

1. The respondents claim to come within the definition as a “serviced apartment” is allegedly proposed.  Conflict along the same lines as the argument here has arisen under another local government’s Planning Scheme, which adopted corresponding definitions in even more archaic language, leading to decisions of the court in Stradbroke Island Management Organisation v Redland Shire Council (1998) QPELR 495 and Friends of Stradbroke Island Organisation Inc v Redland Shire Council (2002) QPELR 315. On neither occasion did Judge Quirk need to resolve the matter, because the relevant proposal was assessed by him as within the definition of “tourist resort”. Mr Gore relied on passages in the judgments as showing judicial recognition of the demand that exists nowadays for holiday or short-term accommodation in large, well-appointed, self-contained apartments with two or more bedrooms.

1. His Honour said in the first case:

“   In the appellant’s case it was pointed out that each of the units was self contained and suitable for permanent accommodation.  Whether the proposal was really for short term accommodation and not a “multiple dwelling” development (a prohibited development in the table) was questioned.

This question was one which occurred to the respondent’s planning officers who sought clarification of the matter from the appellant.  In reply, the appellant advised that;

‘·     the units are designed for holiday letting rather than permanent accommodation with minimal storage space, smaller than usual bedrooms etc.

·the adjoining Claytons on Cylinder development comprises ten units all of which are used for short term accommodation.  None have been used as a permanent accommodation.  The proposed units will be operated on the same basis.’

There was also reference to a “management agreement” in respect of the development being negotiated with a prominent real estate firm, but the difficulties in ensuring that this will be done if the units were marketed with separate title (as is intended) has since been recognised.

The evidence gives support of the assertion that “Claytons on Cylinder” is being used to provide short term accommodation and the units are not being lived in permanently.  There was no good reason, on the evidence given, for refusing to accept that the proposal would be so used.  In these times there is undoubtedly a demand for holiday units that are well appointed and self contained.  Although the application (and the letter of approval) described the prescribed use as “accommodation units” (as it is in the ordinary meaning of those words) some confusion is introduced by the definition of that term (in what is now a fairly old town plan) in these words:

‘Accommodation unit means any premises used or intended for use as a boarding house, boatel, children’s home, guest house, hostel, institution for poor or disadvantaged persons, motel, old people’s home, orphanage, serviced rooms, unlicensed hotel or unlicensed residential club.  The term does not include a “camping ground”, “caravan park”, “caretaker’s residence”, “community dwelling”, “dwelling house” or “multiple dwelling” as herein defined.’

“Multiple dwelling” is defined to mean:

‘Any premises used or intended for use as attached houses, cluster houses, flats, home units or townhouses, or other residential use comprising two or more units or self contained accommodation in one allotment or a group of adjoining allotments’.

However, no anxiety regarding the interpretation of these definitions is called for.  When the application and approval is looked at as a whole it is (on the basis that it is intended to provide for short term holiday accommodation) within the definition of “tourist resort” which is defined in the Development Control Plan as:

‘An establishment providing short term holiday accommodation and may include camping ground, caravan park, holiday cabins, hotel, motel, refreshment establishments or a club used in conjunction with any such activities that does not include multiple dwellings as defined in the Town Planning Scheme”.

The applicant indicated preparedness to accept a condition that:

‘The units must not be used for a purpose other than short stay holiday accommodation.’

That would not, in my view, be necessary as permanent accommodation of a unit would take the use outside the ambit of that of a permissible use and into that of a prohibited use which could, as a matter of law, be restrained.”

and in the second:

“[18] The Appellants’ contention was that the self-contained units intended as part of this proposal would be likely to be used for permanent occupancy.  There was no real evidence to support this suggestion, and the facts, as they were established, are quite to the contrary.  The evidence of Mr Lally, the principal of the entity that has conducted this hotel and will continue to do so, is that the facility will be operated as an integrated tourist resort.  I accept this evidence.

[19]  That the units are intended to be self-contained is not to the point.  Such units are a regular feature of accommodation offered at locations popular with tourists.  Nor is it in any way determinative that the units may be offered for a sale on a “Strata Title” basis.  This is a matter relating to investment and ownership rather than mode of use, and is not at all uncommon where tourist resort developments are concerned.”

“[1]  This appeal, by adverse submitters, is against the Respondent’s approval of an application for a material change of use of land at Point Lookout, a coastal township in the north-eastern part of North Stradbroke Island.  The land occupies an area of just over 8000 square metres and is located on a headland.  It is, and has been for many years, the site of the attractive and popular, Stradbroke Island Beach Hotel. This complex comprises conventional licensed hotel premises and sixty-six serviced accommodation units in a unique and highly scenic location.
…”

1. It may be thought surprising that the court is not more often called upon to determine the correct characterization of a use.  It happened in the Stradbroke Island cases referred to above, and in Herston Kelvin Grove Residents’ Action Group Inc v Brisbane City Council (2001) QPELR 382 where there was a 1959 approval of premises for use at a “convalescent home” and subsequent approvals and changes in planning scheme provisions made it an “institutional residence”. The activities carried out, which once had been those of a nursing home providing care and accommodation for elderly residents changed (under a new owner) to accommodation of mentally handicapped people and/or short term accommodation of immigrants. The applicant contended this amounted to the new use of “tenement building”: see [72]; the court rejected that contention, and determined there had been no material change of use.

1. Other examples of the court’s determining characterization of a use include West Pacific Properties Pty Ltd v Brisbane City Council (1994) QPLR 201 (Warehouse Premises or Business Premises); Gandini v Cardwell Shire Council (1994) QPLR 193 (dwelling house or “caretaker’s residence”); Birch Carroll & Coyle Limited v Brisbane City Council (1997) QPELR 279 (Sports and Convention Centre or Place of Assembly); Mitchell v Cairns City Council (1999) QPELR 105 (Warehouse or Freight Depot) and Richgard (No. 40) Pty Ltd v Gold Coast City Council (1999) QPELR 202 (Surgery or Medical Centre). Those authorities confirm that the characterization urged by the proponent of a use does not necessarily prevail. In the first-mentioned a number of authorities were collected which indicated that the approach of a “practical mind” is appropriate, particularly where one encounters “an expression of normal parlance” (such as “serviced apartment”).

1. I am grateful to Mr Gore for responding to my enquiry as to authorities regarding what might be called a “best fit” approach to identifying uses.  He responded by supplying a copy of a paper he gave at the 1989 Queensland Environmental Law Conference, in the course of which he said:

“20.     In practice, a common situation where interpretation questions arise is with respect to the proper characterisation of a particular proposal or use.  When is a shop not a shop?  When is a tavern not an hotel but a shop?  Questions of this kind will arise whenever a particular proposal does not fit neatly or specifically within any of the definitions contained in the scheme.

21.  In such cases, I think that one searches for the definition which “best fits” the proposal.  The Courts have never put it this way, but I believe it to be an accurate description of their approach.  It has been said that what is within or outside a defined purpose will often depend upon questions of fact and agree (Franceschini v Melbourne & Metropolitan Board of Works 1980 57 LGRA 284; City of Springvale v Heda Nominees Pty. Ltd. 1982 57 LGRA 298) and, as already indicated, a commonsense approach, without ignoring the language used, is appropriate with a planning scheme. When a characterisation problem arises, it is sometimes suggested that the particular proposal does not fit any definition at all, and that it falls within a category of innominate uses. It is commonplace in Queensland for a Table of Zones to contain a dragnet provision in one of the columns; for example, the consent column may refer to any purpose other than those permitted by the as of right column or prohibited in the prohibition column, and each of those other columns will refer to defined purposes. This dragnet provision - so the argument goes – picks up a category of innominate uses; that is, it includes all undefined purposes as well as the residual category of defined purposes. This is not an approach which has any settled basis, and I do not favour it. I much prefer the “best fit” approach, even if the “best fit” feels a little uncomfortable. Apart from anything else, I do not think that one can attribute to the local authority an intention to assign uses which it has not specifically addressed to the dragnet provision in the Table of Zones. This could very often lead to some illogical and obviously unintended planning conclusions. I think that these points are illustrated by the decision in Seaforth Nominees Pty. Ltd. v Maroochy SC 1982 7 QL 354.  There, the Local Government Court held that a tavern was not an “hotel” as defined under the relevant town planning scheme (as that definition confined an hotel to any premises specified in a licensed victualler’s license issued under the Liquor Act, a tavern license was a different description of license from a licensed victualler’s license).  In holding that the tavern was a “shop” (which may to some have seemed to be an awkward “best fit”), the Court rejected the approach that the tavern could be treated as a distinct purpose which was comprehended by the dragnet provision in the Table of Zones.  On that approach, a tavern would have been permissible in the Residential A and Residential B Zones, even though hotels and shops were both prohibited in those zones, and the Court regarded such a result as contrary to the intent of the town planning scheme.
22.  Sometimes these characterisation problems will arise because the proposal involves some modern concept or facility which may have not even existed at the time the town planning scheme was promulgated.  This type of situation may be expected to more regularly arise these days, when changes in technology or the ingenuity of developers are probably a more frequent occurrence.  The approach of the Courts used to be that legislation was to be construed in accordance with the ordinary meaning of words as at the date of its enactment (known as the principle of contemporanea expositio), but that approach is now confined to the construction of ambiguous language used in very old statutes, where the language itself may have had a different meaning (Babaniaris v Lutony Fashions Pty. Ltd. 1987 163 CLR 1 at 23-24). On the modern approach, language is construed according to its current meaning (NSW Associated Blue-Metal Quarries Ltd. v FCT 1956 94 CLR 509, 514), and a generic term may be given an extended meaning with the passing of time; that is, there is no longer any basic justification for restricting the meaning of an expression in legislation to the meaning in use at the time it was enacted. Thus, in Lake Macquarie SC v Aberdare CC 1970 123 CLR 327 at 331, the word “gas” in the Local Government Act 1919 (NSW) was held not to be limited to coal gas but to extend to liquid petroleum gas.”

1. I have taken the liberty of quoting from the paper more than might be thought strictly necessary, in part because it amplifies Mr Gore’s argument regarding the way in which concepts such as “serviced apartment” may be understood to be changing in popular usage; it is not necessary to cite the interesting paper any further.  Mr Gore’s approach, which seeks to fit novel (unthought of) uses into those identified in planning schemes has not carried the day.  What Mr Gore called “innominate uses” are often recognised as such, which may well mean they are assessed as prohibited uses, as in Cambridge v Logan City Council, [2003] QPEC 058. In that matter, an adverse submitter (commercial rival) complained that the Council had adopted a “best fit” approach, but, in truth, the Council had assessed as for a prohibited use. Mr Lyons QC (for the applicant Council) located authority against the use of a “best fit” approach, namely Russell v Pine Rivers Shire Council (1996) QPELR 241, 244, where none of the contending uses, “shop”, “showroom” and “commercial services”, was satisfied, and Mr Gore succeeded in obtaining declaratory and injunctive relief. I agree that a “best fit” approach should not be used in order to strain a planning scheme definition to comprehend some particular proposal – an exercise which involves an illogical assumption that drafters of planning schemes intend to cover and are capable of covering everything. However, a “best fit” approach appears to me appropriate where, as here, there are two defined uses (or more) each of which is apt to cover the proposal. Mr Lyons and Mr Gore agreed that the other’s characterisation was arguable. Except that the definitions are made mutually exclusive, it would not be difficult to regard both of them as satisfied. Here, the “best fit” is “multiple dwelling”, in my opinion.

1. What the court must work with here, where it is forced to choose between accommodation building and multiple dwelling is the definitions, each of which purports to define a category exclusive of the other.  In practical terms, changing circumstances and human inventiveness make insistence upon the distinction somewhat ridiculous.  Both the Council and the respondents seek to read into the definitions notions which are not expressed there, perhaps out of general awareness of definitions in other planning schemes which incorporate such notions.  Council, I thought, relied on the notion of premises being self-contained (with full cooking and laundry facilities), in particular, as taking the proposed use out of “accommodation building”.  The definition of Dwelling House refers to “self-contained accommodation for the exclusive use of one family”, but the definition of Dwelling Unit does not contain that concept.

1. Mr Gore submitted that inherent in the examples given in the definition of “accommodation building” is a notion of short-term accommodation, and perhaps particularly so when the list of examples given in the definition of multiple dwelling is looked to for comparison, likewise the definition of Dwelling Unit, which refers to “exclusive residential use of one household.”  I am not persuaded that either of those approaches is right.  Even if there is some standard approach that the kinds of places listed as accommodation buildings are most likely to be used by transients, it is likely that many residents of boarding houses see them as their permanent accommodation; residents of hostels may include, if not people there permanently, for example in hostels for the aged, others such as students undertaking educational courses which may cover years.  The standard of what is proposed here (and the size of the proposed units), assuming them to be used for holiday accommodation, far outstrips what many must rely on for the permanent accommodation of themselves and their families.  I find it difficult to identify a concept of permanence or anything long term in “exclusive residential use of one household” in the definition of Dwelling Unit.  If it be suggested that the word residential introduces the concept, then it is difficult to distinguish convincingly the “residential club” given as an example of accommodation building.  Why should not residents be there long term?  One thinks of the (apparently) long term residents of Fawlty Towers, the Major and the ladies.  This was presumably an accommodation building rather than a multiple dwelling, if requiring characterization under the Planning Scheme for the Shire of Livingstone.  Accepting Mr Stephens’ claims in their entirety, the proposal is going to “comprise more than two dwelling units on ... one allotment.”  The proposal, in my view, fits more comfortably within the examples which are given of multiple dwellings, rather than within the concept of “serviced apartment”, surrounded as the reference to it is by other examples of “accommodation building”.

1. Mr Gore put in evidence the Yellow Pages section headed APARTMENTS – SERVICED, to corroborate assertions in affidavits about present-day accommodation preferences, consistent with Judge Quirk’s views.  Some of the businesses listed call themselves serviced apartments.  Others do not.  I am not persuaded that the categories selected by Yellow Pages can determine anything here.

1. The concept of “serviced apartment” or “serviced flat” is sufficiently understood in this country to merit a definition in the Macquarie Dictionary, where one reads:

“serviced flat  / sзνəst   / n.  a flat in which certain services, as cleaning, meals, etc., are provided.”

One must enquire what services are to be supplied.  The respondents rely on statements in Mr Stephens’ affidavit to the following effect:

“3.In November/December 2002, I engaged my architects to prepare a development scheme for land comprising Lots 1 and 2 on RP 606662 and Lots 3 and 7 on RP 604738.

4.          ...

5...., my intention was to seek Council approval for and to undertake development consisting of an 8 storey residential complex.  ...

6....  I was told at that meeting the height limit was currently 3 storeys and anything higher required a development approval.  ...

7.I subsequently received advice from my solicitors that Council’s Local Planning Policy regarding height had no legal effect, ....

8....that provided the use to which I intended putting the proposed development fell within the definition of a serviced apartment, ... the use was self assessable and did not require Council’s consent, ...”

...

19My wife’s parents .... will live on the site, manage the day to day running of the serviced apartments including the letting of the apartments and the servicing of them...

...

21.... From what I can determine from both staying at and visiting complexes that are let out as serviced apartments (howsoever characterised), the common features I have noticed are:

(a)an onsite manager;

(b)daily or periodic servicing of apartments depending on the location and the target market, and the period of stay of the guest.  The servicing can be on a daily or weekly or some other basis but frequency tends to decrease as the length of stay increases;

(c)the periodic servicing of the apartments usually consists of cleaning, changing of linen, and possibly the restocking of fridges and other consumable items which are placed in the serviced apartments on a pay for consumption basis; and

(d)the ability to have food delivered to the apartment is often also provided.  Commonly, the menu is that from a nearby restaurant, or one in an adjacent commercial tenancy.

22.I am informed by my wife, ... that ... the laundry that provides the line service to the Hacienda Motel currently, … have indicated a willingness to provide the necessary laundry service to enable the servicing of the apartments.... appropriate commercial arrangements could be put in place...

23....  I intend to engage a contract cleaning firm to undertake the internal cleaning of the apartments ...

24.The on site managers will be responsible for cleaning and maintaining the common area ...

25.Other facilities ... intended ... as part of the servicing of the apartments are:

(a).... internet service ...

(b)... movies or cable television service

(c)... tourist information services, ... ie a ‘travel desk’’;    

and

(d)... meals on site either in room or at the restaurant in the ground floor ...

26.... there is a market trend towards serviced apartments

27.... My ‘design brief’ to the architect was to have large units that would differentiate my serviced apartments from others in the market place.

30.  ... it is intended to have the building subdivided under the Body Corporate and Community Management Act 1997.  ... retaining ...(....at least 10) apartments ... selling the balance to investors as rental properties.  It is intended that the contracts of sale ... contain requirements for lease-back, ... I will control the whole of the building”

1. There is no definition of “intended for use” of the kind included in the planning scheme considered in Jackson v Redland Shire Council 926/2003, 14 November 2003, [14], expressly defining “intended for use” in terms of what use premises seem appropriate for.  On the face of things, even accepting that Mr Stephens was not cross-examined, his assertions that the proposal is for a “serviced apartment” are difficult to accept.  There is no sign in the building of adequate storage spaces where cleaning staff might store equipment, cleaning products, the customary trolleys, clean or soiled linen, and the like.  For the most part, entrances to the proposed apartments are accessed by stairs from walkways – that is, a short flight of steps must be traversed, because the front door is not at the level of the walkway, except at one end of the building.  Such an arrangement would be highly inconvenient for cleaning staff, perhaps less so for people delivering meals; it is bound to be regarded as an inconvenience for guests wanting to get their luggage in and out.  Whether or not a leaseback arrangement of the kind said to be intended is feasible, or would ever actually come about, is a matter of speculation.  Of course, it would be putting the cart before the horse to require the developer to have relevant contractual arrangements made even before it is known whether the project will go ahead.  I harbour extreme doubts regarding the likely persistence and/or feasibility of the professed intentions.  These amount to profession of a willingness (which may well be there) to describe the proposal in ways that would enable it to be brought within a special, and somewhat anomalous provision in the Planning Scheme. 

1. The accommodation building is to be located above restaurant and retail uses at Anzac Parade ground level.  Mr Gore placed reliance on Dunn J’s statement (for the Full Court) in R v Smithex parte Queensland Aggregates Pty Ltd (1981) Qd R 618, 622:

“I have said that, generally speaking, no town planning consideration will intrude itself into the deliberations of a local authority when it considers an application that it approve the erection of a building.  However, I concede the possibility that the “nuts and bolts” content of an application might (in rare cases) raise a town planning question.  For instance, if an application which purported to be an application for a permit to build a dwelling-house was accompanied by plans and specifications which caused the local authority to rule that it was in truth an application to build a shop, and to refuse it because use of the land in question for the purposes of a shop was a prohibited use, a question related to its Town Plan would have arisen.”

His Honour went on to refer to The King v City of St. Kilda, ex parte Rodd (1937) VLR 48, the headnote of which is:

“The owners of land were desirous of building thereon an eleven-storey building comprising 228 residential flats.  It was the intention of the owners to provide for the tenants of the flats certain common services, including lifts and attendants, a telephone and message room and attendant, a hot water service, and the supervision and cleaning of a common lounge room and conservatory and the common entrances, stairways and corridors.  The council of the municipality in which the land was situated had, pursuant to sec. 198 of the Local Government Act 1928, made a by-law regulating the requirements of this by-law.  The Council, having come to the conclusion that the proposed building was one which would be erected and used for the purpose of a business, contrary to another of its by-laws which related to residential areas, directed its surveyor not to issue a permit to build.

Held, that the council was entitled to take into consideration the question as to whether the residential areas by-law would be infringed; that, having regard to the nature and size of the building and the services to be rendered by the owners, there was evidence before the council that the building was to be erected and used for the purposes of a business; and that, the council having come to its conclusion in good faith and upon reasonable grounds, a writ of mandamus, directing the issue of a permit for the erection of the building, should not be granted.”

Mann CJ said at 52-53:

“The order nisi is supported on two main grounds:  First, that the question of the breach of any other by-law was an irrelevant matter for the surveyor or the council to consider in relation to the grant or refusal of a permit under by-law No. 78, and secondly, that the council was wrong, both in law and in fact, in adopting the view they did as to the purposes of the building.

Now, as to the first point, I can find no clear implication in the language of by-law No. 78 that the surveyor must exclude from his consideration of the plans and other particulars their relation to the site on which the building is to be erected.  Every notice of intention to build must indicate the proposed site, and it seems to me a little starting to suggest that the surveyor must issue a permit although he believes that the erection of the building will contravene a regulation applicable to that particular site, simply because the regulation in question happens to be in a separate by-law.  The whole question of duty resting upon implication, the applicant must show that what he contends for flows necessarily from the language used.  I do not think it does.  It is important to note that what is here demanded of the surveyor is not approval of the plans but permission to build.

This brings me to the second contention, which is that at all events the permit must issue unless it be proved affirmatively before me that there will be an infringement of by-law No. 103, and I am asked to find upon the evidence in the affidavits that there will not.  Whether there will or not is chiefly a question of fact.  The content of the word ‘business’ no less than of the word ‘residential’ may change with changing customs.  There is no antithesis to be found in the words.  It was for the council to consider the facts before it.  Having come in good faith to the conclusions they did, they have fully discharged their duty, and the applicant has no appeal to the Court under the guise of an application for a prerogative writ.  This seems to be the effect of the decisions upon the matter (see particularly Smith v Chorley District Council (h), and the statement of the law by Darling J in Rex v Cambridge Corporation; ex parte Cambridge Picture Playhouse (i) in these words: ‘The proper rule to be deduced from the cases cited relating to the grant of mandamus seems to be that the writ will not be granted if the local authority bona fide and on reasonable grounds, believe that the erection of a proposed building will not comply with, or will contravene, some Act of Parliament”).

But it is said this is a pure question of law because there was no evidence upon which any reasonable men could find that this building was for use for a business.  With this I do not agree.  The size of the building, the extent to which it would be occupied and used by the owners or their servants for purposes of continuous control and management, the services to be rendered to the guests and the very number of the guests were all matters proper to be considered, and suggest at once the analogy of a large private hotel.  No definite implication is to be found in the word ‘flat’, so far as appears, unless it be, possibly, the existence of means by which each guest may prepare his or her own meals if desired.  Evidence on the matters I have indicated was before the surveyor and the council and they were entitled to draw reasonable inference of fact from the evidence if necessary.  If my own view were material I should not be prepared to differ from their conclusion.”

1. Mr Gore referred the court to two cases of “sham” application in which applications for a “health and beauty salon” and a “health studio” (said to come within “professional chambers”) which were considered as in truth made to facilitate operation of brothels, consistently with previous use of the premises, were held rightly rejected: Dennis v Parramatta City Council (1981) 43 LGRA 71, Sydney City Council v Hurzeler (1981) 46 LGRA 240. The present circumstances are in a very different context. However, I take the approach that it is unsatisfactory to let a project like the present one go ahead, despite misgivings as to the characterization of it, taking refuge in the ability the Council might have, theoretically, should the building ever be used as a “multiple dwelling”, to prevent that. I think it totally unrealistic to contemplate that an expensive asset could be sought to be sterilized in that way, and especially so if there came to be numerous disparate (and “innocent”) proprietors.

1. The public interest component in the present controversy is obvious.  The proposed building will dominate Yeppoon.  Its height far exceeds that of any other development.   The second respondent’s ability to erect it on the basis of approval by a private certifier, so that pro tanto any role or influence of the local government is excluded, depends on the correctness of the contention that the building is an accommodation building – a contention which, in the circumstances, should be scrutinized with appropriate care.  In my opinion, that scrutiny can occur at this stage, upon the Council raising the issue, rather than await determination in other proceedings once the building is up.

1. It is not necessary to take this further step, but reading “serviced apartment” ejusdem generis with the other categories of accommodation building identified, namely boarding house, guest house, hostel, unlicensed hotel, unlicensed residential club and serviced room, it is hard to avoid the conclusion that serviced apartment is not intended to include premises like those under consideration here (two and three bedroom units, some on two levels, with full kitchen and laundry, and in some cases studies and family rooms).  These, it seems to me, come within the definition of dwelling unit, namely, premises used or intended for use for the exclusive residential use of one household.  The building would satisfy the definition of multiple dwelling, but for the peculiarity of the exclusion of “an accommodation building”.

1. It appears to me that, should even two of the apartments slip through the lease-back arrangements professedly proposed by Mr Stephens, over and above the unit his parents in law would live in, the building necessarily becomes a multiple dwelling.

1. A spate of litigation in the District Court arising from a couple of developments in Brisbane has demonstrated that such lease-back arrangements as Mr Stephens says are intended, even when fully documented in executed agreements may come completely unstuck if the lessee lacks the willingness or ability to pay the rent.  See for example Banks v Copas Newnham Pty Ltd (3792 of 2000, 26 September 2001) and Walker v Richards (4064 of 2000, 7 May 2002, Boulton DCJ).  In the former development, a complication analogous to that of the multiple dwelling/accommodation building issue here arose.  Under town planning arrangements then current, the approvals obtained permitted only short term occupation of the units purchased, frustrating the expectations of purchasers that, should their units not be committed to lease-back, they might occupy them themselves.  In Serrano v Richards (1003 of 1999), a town planner, Mr Kumskov gave evidence relevant to the town planning problem.  Fortunately for the purchasers, by the time of the trial in Banks, the Brisbane City Council issued some other approval(s) which alleviated the situation to an extent.  (This topic merits notice in these reasons because it was ventilated during the argument.  Mr Gore argued strongly that the court would be distracted from its proper task by giving attention to it.  It has not determined the outcome of any issue considered by me.  It points up Mr Stephen’s failure to add weight to his claims by identifying any particular lessee or class of lessees with the financial strength to maintain the “lease back”.)

1. In my opinion, the proposal does not involve serviced apartments in the traditional sense that services, including at least provision and changing of linen and cleaning, are provided to occupants as of course, and (usually) by the management.  What Mr Stephens proposes appears to be the identification of outside firms which will provide such services along those lines as the occupants wish to request, in return for payment of appropriate charges.  My understanding of the traditional serviced apartment is that such services are included in the tariff and it would be a highly exceptional case were occupants of the accommodation to chose to forego provision of those services.  In my view, the developer cannot gain any advantage from using the expression “serviced apartment” repeatedly or suggesting that it is an appropriate description in modern times for the apartment buildings listed in the exhibits to his affidavit.  I am not sure how many of those designate themselves as serviced apartments, in my view, this would make no real difference.  It has not been demonstrated that the proposal has a character of serviced apartment or accommodation building, so as to take it out of “multiple dwelling”, where it fits without difficulty.

1. The Council thus succeeds on its point regarding characterization of the use.  It follows that a private certifier was not empowered to approve the building in advance of the Council approving a Material Change of Use.

Did the private certifier decide the development application prematurely?

1. Not content to put all its eggs in one basket, the Council raised more specific objections under s 5.3.5 of the IPA.  The argument is that additional approvals were required, and that Mr Wilkins was precluded from finally deciding the application until they had been obtained.  As originally enacted in 1997, the section provided:

“(3)       However, the private certifier must not decide the application until all other assessments for the application (other than assessments against the Standard Sewerage Law or Standard Water Supply Law) are completed.

(4)         If the private certifier receives the application before all other assessments are completed –

(a)       the certifier may start processing the application; and

(b)for timings under IDAS, the application is taken not to have been received until he day all other assessments are completed”

1. In 1999, a new s 5.3.5(4) was inserted in the IPA:

“(4)  However, the private certifier must not decide the application until –

(a)    all necessary development permits are effective for other assessable development related to the development; and

(b)       all necessary preliminary approvals are effective for other assessable aspects of the development; and

(c)       all necessary approvals under the Standard Water Supply Law and Standard Sewerage Law have been given for plumbing and drainage work related work related to the development for premises not in a sewered area under the Standard Sewerage Law.”

The relevant Minister on 8 June 1999 (Hansard 2213) explained the change to the Legislative Assembly:

“When considering the Integrated Planning Bill in 1997, the Parliament was concerned about the ability for private certifiers to approve building work before town planning matters had been resolved by the local council.  To ensure that this did not happen, the legislation requires that all other development approvals with the exception of plumbing and drainage approvals in a sewered area are issued by the council before a private certifier issues a building permit.  This was intended to ensure that the private certifier’s building approval was consistent with town planning decisions relating to the building.  To ensure that private certifiers complied with this requirement, the legislation made non-compliance with these provisions a serious offence.

While this legislation has operated effectively for over a year, a recent decision of the Planning and Environment Court rules that a private certifier can issue a building permit without waiting for town planning approvals.  This is despite what appears to be the clear intent of the IPA legislation and Explanatory Notes.  Specifically, the court interpreted section 5.3.5 (4) of the IPA to mean private certifiers need only wait for other building approvals relevant to the application and not those relating to other aspects of the development, such as a change of use under the planning scheme.

This amendment to the Local Government and Other Legislation Amendment Bill 1999 proposes to amend the IPA to remove any doubt over the intended meaning of this section.  This amendment will clarify that other assessments for a development must be completed before a private certifier issues a development permit for building work.  The only exception to this will be plumbing and drainage works in a sewered area.  These approvals have traditionally been obtained after the building permit has been issued.

If Parliament’s intentions are not clarified by the passage of this amendment, it would provide a precedent for other private certifiers to argue that they, too, are not required to wait for town planning matters to be resolved before issuing an approval.   Also, some private certifiers may be tempted to ignore town planning requirements, including public advertising of a proposal.  If this was to occur, councils and the public generally would quickly lose confidence in the legislation.  It is therefore essential that the legislation be clarified as a matter of urgency.”

1. The issue here is whether the third respondent was obliged to delay his decision until the various determinations by the Council called for by the Planning Scheme (however described) under 7.3.4 (as to landscaping), 7.2.3 (as to parking) and 7.3.9:

“Adequate provision for water supply, sewerage and storm water drainage must be made to the satisfaction of Council.” 

are forthcoming.
Related to the last is s 56 of the Standard Building Regulation 1993:

“56  Building work over sewer or water main

(1)         This section applies if a development application made to a private certifier proposes building work over or adjacent to a sewer or water main.

(2)         The private certifier must not approve the application unless the local government has granted the necessary approvals under the Standard Sewerage Law or Standard Water Supply Law.

(3)For subsection (1), building work is over or adjacent to sewerage if the offset of the nearest point of the building work from the centre line of the sewerage is a distance less than the depth to the invert of the sewerage.”

(It was argued by Mr Gore that s 56 has been overtaken by the later expression of Parliament’s will in the new section 5.3.5(4)(c) of the IPA, on the basis that the Parliament did not wish to inhibit the deciding of applications in sewered areas. The Minister said as much. However, in my view, there has been no repeal of s 56 by a side wind in this way. It deals with an analogous situation to that covered in s 58, under which building work over land in an easement must not be approved unless the holders of registered interests in the easement consent to the building work.)

1. Section 5.3.5(4) operates only where there is development or some aspect of development described as “assessable”. The Council’s argument refers to the definition of assessable development in s 6.1.1 of the IPA as meaning development that under the Local Government (Planning & Environment) Act 1990 (P&E Act) would have required an application to be made for a “continuing approval”.  That expression is defined in s 6.1.23(b) as meaning an approval “by whatever name called” given under a former planning scheme, subject to an exception where it is required in a planning scheme for an action to be carried out to the satisfaction of “a nominated person” (6.1.23(1A).  Mr Lyons argues the definition of assessable development is clearly intended to pick up any aspect of development which would have required a decision by a Council under a planning scheme – to be contrasted with “self-assessable development” which, under s 6.1.1, relevantly means:

“(b)       development, not inconsistent with Schedule 8, that –

(i)under the repealed Act, would not have required a continuing approval, but would have been required to comply with standards ...”

The term ‘standards’ means –

“.. requirements, including a requirement mentioned in Section 6.1.23(1A) under a transitional planning scheme ... applying to development.”

1. At this point, Mr Gore’s submissions and Mr Lyons’ submissions took different turns.  Mr Gore seized on “requirements” being a well established concept in planning law in Queensland, a term of art, and on the definition of “person” in Schedule 10 of the IPA as including a “body of persons” being apt to include the Council.  He argued that:

(1)       The proposed development is “self-assessable development” because, under the transitional planning scheme, it was permitted development and so, under the Local Government (Planning & Environment) Act 1990, would not have required an approval of any kind.  Under the P&E Act, “permitted use” was defined (in s 1.4) to mean:

“a use of premises which may be undertaken pursuant to a planning scheme, without the approval of the local government, notwithstanding that the local government may require an application for the setting of conditions or the issue of a certificate of compliance or in respect of any other matter.”

(2)It would accordingly be very odd if some minor or subsidiary aspect of the proposal, such as the landscaping and the parking area, nevertheless attracted the status of something requiring “a continuing approval”.  Indeed, when the P&E Act was in force, none of the requirements upon which the Council now relies (from Part 7 of the planning scheme) could have denied an “accommodation building” the status of a “permitted use”, and none of them could have been regarded as requiring “the approval” of the Council so as to take an accommodation building development outside the definition of permitted use.  Notwithstanding that the provisions speak of an “approval” relating to the landscaping layout (clause 7.3.4.1), or of a parking area “to the satisfaction” (clause 7.2.3.1B), all of the provisions in Part 7 deal with “requirements”.  These requirements apply “to all development whether consent is required under this scheme or not” (see the heading to Part 7; see also clause 7.3.1).  They therefore applied to as of right development, and should only be viewed as “requirements”.  Importantly, the parking requirements were described as such in the heading to cl 7.2 and in cl 7.2.1, and the landscaping requirements were described as such in cl 7.3.4.9.   

1. Mr Lyons’ submission was that the definition of “assessable development” is clearly intended to pick up any aspect of development which would have required a decision by the Council under a planning scheme – by contrast with “self-assessable development”, being development which would not have required a continuing approval but would have been required to comply with standards; he submitted the language used in s 6.1.23 is plainly intended to be all-embracing, and to extend to applications for relaxations of development standards.  The various approvals and relaxations relevant in this matter, he argued, come within the expression.  In the explanatory notes accompanying the Bill which was passed as the IPA, at p 220 appeared a table indicating which approvals, called “continuing approvals”, 6.1.23 applied to:

“Integrated Planning

Type of approval	Relevant section of current Act	Nature of application made under current Act
Conditions set by certificates of compliance or similarly endorsed certificates	Section 4.1(5)	Applications for a permitted use
Permit	Section 4.13(12)	Application for a consent use
Approval	Section 5.1(1) Section 5.2(1) Section 5.9(1) Section 5.11(1) Section 5.12(1)	Application to subdivide land (including subdivision incorporating a lake – additional matters for assessment under s5.10(1), see clause 6.1.25) Application for subdivision works Application for subdivision works Application to subdivide land in stages Application to amalgamate land Application for access easement to a road
Approval, permit (or other term) under a planning scheme	None – authority comes from planning scheme	Application for matter specified under scheme (e.g. relaxation of development standard)

”

1. It is unsurprising that under the P&E Act, no provision was made for any form of application to the Council for approval, relaxation, expression of satisfaction or the like.  The matter would be before the Council, for purposes of the underlying principal application requiring decision.

1. In my opinion, for purposes of s 6.1.23(1A), dealing with requirements to be carried out to the satisfaction of a nominated person (not a continuing approval), a “nominated person” does not include a local government, acting as a Council. An example given in Fogg, Meurling and Hodgetts, Planning and Development Queensland [8140] of what would be covered by the section is submission of landscaping plans “to the satisfaction of the Shire Engineer”:

“Secondary or dependent approvals of this type are not ... transitioned as continuing approvals.”

1. The authors expressed doubt as to the adequacy of the new (1A) to deal with secondary matters to be “approved” by the nominated person, rather than to satisfy that person.  Page 20 of the Explanatory Notes  for the Integrated Planning and Other Legislation Amendment Bill 1998, which may have been picked up by the authors in the example, states that the definition of “applicable codes” was being amended so that “the words ‘including a requirement mentioned in s 6.1.23 (1A)’ have been inserted to clarify that the statements in planning schemes requiring actions to be carried out to the satisfaction of a nominated person (such as landscaping to the satisfaction of the shire engineer) are requirements of an applicable code for self-assessable development under a planning scheme.  There has been confusion as to whether statements of this type require an IDAS application to be made.  The intent of the Act was that they be treated as self-assessable development.  This amendment clarifies this intention and should be read together with the proposed amendment to s 6.1.23”. 

1. I agree with Mr Lyons that the definition of “person” in Schedule 10 does not control the meaning of “nominated person”.  Further, I agree that the expression “under the repealed Act” in s 6.1.1 does not limit assessable development to matters for which there is an approval process found in the P&E Act, that the P&E Act gave effect to planning schemes, and accordingly to requirements in them for some form of approval “by whatever name called.”

1. It is interesting that in Part 7 of the Planning Scheme itself, in 7.2.5, reference is made to “request being made” to the Council to dispense with or modify “all or any of the parking requirements herein”.  7.3.4.9B refers to material “submitted” to the Council by a developer – and “approved by the Council”.  It seems to me such provisions contemplate an application and that it is inappropriately artificial or technical to expect to find in Part 7, or indeed Part 9.2.1 – Application for Consent or in 9.2.4 – Other Applications or elsewhere in the Planning Scheme provision for or about applications in such respects; historically, they would have been subsumed in some larger, over-riding application to the Council.  So far as private certifiers are concerned, the Explanatory Notes in relation to the 1997 Bill made it clear that the intention was that private certifiers stay their hands in the way the Council contends for here:

“Section 5.3.5(4) requires that a private certifier must not decide a development application until all other assessments are completed.  Many development proposals will involve different types of assessable development (eg change of use, building work, reconfiguration, etc.).  Because private certifiers in many cases will have jurisdiction to deal only with an aspect of the overall proposal, it is important that certifiers are not empowered to decide their component of the proposal ahead of the other assessable components (eg until the other assessments have been completed).  This ensures that the certifier’s approval is consistent with the assessment manager’s decisions on the other aspects of the proposal.”

1. It would be difficult to argue that the 1999 amendments effected any change. In this case, the third respondent’s decision and amended decision breached the prohibition in s 5.3.5(4).

Relevant Planning Scheme provisions about Council “approvals”

1. Part 7 of the Planning Scheme sets out “provisions applying to all development whether consent is required under this Scheme or not”.  The relevant provisions are:

“7.2.3.1   A parking area shall be –

Alevel or at such a gradient as in the opinion of the Council is suitable for vehicular parking;

Blaid out to the satisfaction of the Council in such a manner as to provide adequate access to each parking space and to permit the free circulation of vehicles entering, leaving and parking;

Cconstructed, drained, sealed, marked and maintained to the satisfaction of the Council;

Dreadily accessible for vehicular use;

Eindicated by means of a sign or signs to the satisfaction of the Council.

.2  A parking area shall be located upon the allotment upon which the development is to be carried out: Provided that the Council may by special consent, approve of a parking area located upon an adjacent allotment or allotments in cases where no part of the parking area is more than two hundred (200) metres from the allotment upon which the development is to be carried out.

.3  The Council may require that access to the parking area be provided from two (2) roads, in which case  the access ways and roads shall be at least six point five (6.5) metres wide, where traffic movements are required to be made in two directions and four (4) metres where traffic movements required are in one direction.

.4  A parking area required by this Section shall be-

Akept exclusively for parking;

Bused exclusively for parking;

Cmaintained in a fit and proper condition for parking purposes.”

.5  Adequate space shall be provided within the site of the building or development for the loading, unloading and fuelling of vehicles (where applicable) and for the picking up and setting down of passengers.

.6  Any parking space one side of which is located against a wall or similar obstruction shall have a minimum width of three (3) metres.

The relevant landscaping requirements (however the building be characterised) are:

“7.3.4.1The prior approval of the Council shall be obtained to a layout showing the proposed landscaping.

.2Unless the Council, having regard to any special circumstances which may apply in respect to a particular site, approves of a proposal no carports or other structure, other than minor structures associated with landscaping and fencing shall be permitted between the building line and the road boundary.

.3Subject to provision 7.3.4.4 a landscaped open space area of fifteen (15) square metres per person occupancy shall be provided on the site and landscaped to the satisfaction of Council; Provided that Council may vary this requirement having regard to the particular circumstances of the location or the topography of the site.  At least fifty (50) per centum of the total landscaped open space area required pursuant to this paragraph shall be provided in one area, and the dimensions of such an area shall not exceed a maximum ratio of length to breadth of two point five to one (2.5 : 1);

.4In the case of a dwelling unit which is not below or above any part of another dwelling unit a minimum private landscaped open space area of twenty five (25) square metres per dwelling unit may be provided in substitution for the requirements in provision 7.3.4.3.

.5The landscaped open space area provided pursuant to provision 7.3.4.3 or provision 7.3.4.4 shall at all times be kept clear of all obstacles such as clothes hoists, driveways, parking spaces and receptacles;

.6A landscaped open space area provided pursuant to provision 7.3.4.3 or provision 7.3.4.4 shall at all times be maintained in useable condition for that purpose and except in the case of a dwelling unit referred to in provision 7.3.4.4 shall be available for the use of all residents of the building or other structure.

.7The landscaped open space area shall include an area an average of three (3) metres deep adjoining all street frontages which is to be landscaped in the following manner to the satisfaction of the Council –

Athe area shall be at the same level as the footpath;

BForty (40) per centum of the landscaped area shall be capable of deep planting:

Provided that such area of deep planting may be included in that area required by provision 7.3.4.7.A above;

.8Provided that Council may modify the requirements of this provision having regard to –

.Athe width of the existing footpath;

.Bthe proposed landscaping or paving of any setback or footpath;

.Cthe existing development in the area;

.Dthe existing and proposed amenity of the area;

.Ethe levels of depth of the allotment;

.9Development of premises required to have a landscaped area shall not be undertaken unless –

AThe landscaping requirements contained within the planning scheme, including any development control plans affecting the site are met, and any statement of planning policy are taken into account;

BAll landscaped areas are landscaped in accordance with a landscaping layout that has been submitted to and approved by the Council.  Any such landscaping layout shall include the following information unless otherwise determined by the Council –

(i)   Location and name of existing vegetation on site if it is to be preserved;

(ii)    Location of drainage, sewerage and underground or overhead services;

(iii)  Soil type, analysis and moisture conditions for both subsoil and topsoil;

(iv)   Contours and spot levels, both existing and proposed to all surfaces, including levels at the base of all existing vegetation to be retained, and surface  levels of exposed services such as manholes and the like;

(v)     Details of all materials, finished surface treatment, and methods of construction proposed, including relevant details of the edge treatment/method of containment of planted areas, all fences and other such structures where applicable;

(vi)   Location of proposed plants;

(vii)Schedule of proposed plants, including details of plant age/size, and/or pot size, botanical and common name;

(viii)   Any further information which may be requested by the Shire Clerk;

CAll landscaping is to be completed in accordance with the approved planting plan prior to the use being commenced unless otherwise approved by the Council and shall be maintained at all times thereafter to the satisfaction of the Council.”

1. There was argument regarding whether the proposal complied with Point 7, and in particular the meaning to be attributed to “deep planting” in B.  Examples of definitions from other local government planning schemes were placed before the court; while strictly they are totally irrelevant, it was noteworthy that the concept in all of the definitions was that natural ground be available for planting, unaffected by any artificial construction below the surface.  I am satisfied that those definitions comply with the common understanding, to the extent that there may be one of “deep planting”.

1. Mr Gore pointed out that there are various indications in Part 7 of the Planning Scheme that the provisions are concerned with requirements necessary to be satisfied prior to commencement of a use (as opposed to prior to a building approval issuing); eg –

.cl 7.2.1 (re parking requirements) – “a person shall not use premises for any purpose ... unless it complies ...”

.cl 7.3.4.9C – “all landscaping is to be completed ... prior to the use being commenced”

.cl 7.4 (re industrial uses) – “premises shall not be used for any purpose ... unless”

.cl 7.5 (re commercial uses) – “any premises shall not be used ...”

.cl 7.6.1 (re service stations) – “premises shall not be erected or used ...unless”.

So far as the present application is concerned, difficulties in the underlying notion that issues where there is Council involvement may be put off until later, while the construction of the building goes ahead, may be found in provisions such as 7.2.3.1 and 7.2.3.3, under which the Council may require that access to the parking area be provided from two roads - the design here contemplates access only to Barry Street; should the Council require access to Anzac Parade as well, notwithstanding Mr Gore’s suggestion that this might be perverse, having regard to its heavy pedestrian use, compliance may be impractical, or impossible, given that the parking will be at a different level. While the terms of 7.3.4.9C may be noted, and its reference to commencement of a use, there is a more fundamental requirement that development of premises required to have a landscaped area shall not be undertaken unless A, B and C are complied with. While the structure may be inelegant, in practical terms, the submission and approval referred to in B must precede the commencement of work on the site and, having regard to s 5.3.5(4), the private certifier’s decision.

Exclusion of Referral Agency

1. The Queensland Fire & Rescue Service (QFRS) was a referral agency for the present proposal. See Item 1 in Schedule 2 to the Integrated Planning Regulation 1998. Mr Lyons has provided a convenient summary of the elaborate provisions in the IPA dealing with the involvement of a referral agency such as the QFRS in the IDAS process.  Thus:

(a)      the applicant is required to give the referral agency a copy of the application; (see s.3.3.3)

(b)      the applicant must then give the private certifier written notice of the day on which it complied with this requirement; (see s.3.3.4(1)

(c)      the referral agency is to assess the application (see s. 3.3.14 and s. 3.3.15).  The assessment is to be carried out against the laws that are administered by, and policies applied by, the referral agency;

(d)      the referral agency is given the opportunity to provide a response, which would include advice and recommendations to the private certifier about the assessment of the application; (see s.3.3.16)

(e)      in particular, the QFRS could have recommended conditions that should attach to the approval, or that the application be refused; (see s.3.3.19)

(f)      when assessing the application, the private certifier was required to do so against any referral agency response (as part of the “common material” (defined in Schedule 10): see s3.5.4(2));

(g)      a copy of the decision notice is required to be given to each referral agency; (see s.3.5.15(1)).  The referral agency then has a right of appeal against the decision: (see s.4.2.10(1) – to a Building & Development Tribunal:  Section 4.2.10 of the IPA is:

“Appeal by advice agency

4.2.10.(1)          An advice agency may, within the limits of its jurisdiction, appeal to a tribunal about the giving of a development approval if the development application involves code assessment, and the advice agency is the Queensland Fire and Rescue Authority.

(2)  The appeal must be started within 10 business days after the day the decision notice or negotiated decision notice or negotiated decision notice is given to the Queensland Fire and Rescue Authority as an advice agency.”

It is clear that none of the above steps (a) to (g) were carried out (see the affidavit of Mr Smith).

1. The legislation effectively requires that no decision be made until the requirements of the Information and Referral Stage in Chapter 3 Part 3 have been carried out.  The decision stage does not start until earlier stages “have ended”.  See s.3.5.1(1).  Prior to the completion of the Information and Referral Stage the private certifier’s scope for action was limited to assessing the application.  (See s.3.5.1(3)).  However, he could not make a decision on it.

Section 3.5.1. of the IPA defines when the decision stage starts.  Sub-section (3) authorizes no more than starting assessing the application “before the start of the decision stage.”

1. As I understand things, Mr Gore concedes that the Development Application was not referred to QFRS.  He relies on the affidavit of Mr Moran, an independent private building certifier, who deposes as follows:

“Upon considering all of the material available, including a number of documents included in the disclosure material from Acor Engineering file, I make the following comments:

(a)QFRS is only an advice agency.  Ultimate responsibility for ensuring compliance with the relevant code is that of the certifier;

(b)the hydraulic consultants engaged in correspondence with Council about availability of water supply and access to that supply for the proposed development;

(c)the hydraulic consultants engaged the Queensland Fire and Rescue Service to undertake a water pressure and flow test at and about the location of the proposed development, and those results show, in my experience that sufficient supply and pressure is available from which detailed design can ensure compliance with the relevant provision;

(d)the hydraulic design consultant provided a certificate indicating they would and could ensure the final design complied with the relevant codes and standards;

(e)Section 88 of the Queensland Standard Regulation 1993 provides for inspection by QFRS. In my experience QFRS inspect all building work containing Special Fire Services.

(f)Section 88 further requires that a building certifier not issue a Certificate of Classification until a referral agency has provided written advice regarding that inspection;

(g)Section 92(k) of the Queensland Standard Building Regulation 1993 requires all referral agency requirements be satisfied before a Certificate of Classification is issued;

(h)As certifier, I will not issue a certificate of Classification unless I am satisfied that all the necessary codes, standards and requirements are complied with, including the requirement for special fire services.”

It was submitted that, in the circumstances, the omission to approach QFRS should not be regarded as being of real consequence. QFRS have had some involvement and, as Mr Gore says, “retain a right to prevent the development from going ahead if its requirements are not satisfied”, although this may be exercised rather late, at the Certificate of Classification stage. Mr Gore submits that, “notwithstanding the technical omission”, in the exercise of its discretion, the court should decline to grant declaratory relief, on this ground, alternatively should “do nothing”, having regard to s 4.1.5A of the IPA:

“4.1.5A  How court may deal with matters involving substantial compliance
(1)  Subsection (2) applies if in a proceeding before the court, the court –
(a)         finds a requirement of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with; but

(b)         is satisfied the non-compliance, or partial compliance, has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or the other Act.

(2)         The court may deal with the matter in the way the court considers appropriate.”

1. The proposition that everything can be regularized in due course is advanced not only in respect of QFRS, but in relation to numerous other aspects of the proposed building, including parking, landscaping, water supply and sewerage. In respect of the final engineering of the building itself, the same line is taken. Section 4.1.5A(1)(b) is not satisfied here: the QFRS has lost not only its entitlement to have its input considered by the private certifier, but also (or had comprised) any right of appeal.

Lack of information about the approved building

1. Section 31(2) of the Building Act 1975 provides that in assessing or deciding a development application under the IPA s 5.3.5, a building certifier must assess and decide the application against the Building Act itself, including the Standard Building Regulation (by reason of s 7 of the Acts Interpretation Act 1954); section 8 of the Regulation, in turn, provides that the Building Code of Australia (BCA) forms part of and is to be read as one with the Regulation. 

1. I accept the view of Mr Kay, building surveyor (and experienced building certifier) not only in respect of what he says about the QFRS and the issue of building over sewers in his report, but also as to the opinions expressed by him that:

(a)         a building certifier could not establish that the design of the building complies with the Standard Building Regulation and the BCA without examining structural engineering drawings, especially in the absence of construction details in the architectural drawings made available;

(b)         in the absence of structural drawings and detailed architectural drawings, any assessor or certifier would be unable to ascertain whether or not the building complied with Part 3 of Specification C 1.1 of the BCA in respect of the type of construction and fire resistance levels, for the purposes of being in a position to issue an approval for building work to commence;

(c)         in respect of the requirement of Part E 1.3(a) of the BCA Volume 1, which requires an adequate fire hydrant system to be provided, the building having a total floor area greater than the bench mark of 500 m² (the building exceeds 8,000 m²), there is no information available to permit any assessor or certifier to ascertain whether or not the building complies;

(d)        the situation is similar in respect of the absence of sprinkler system details as required by Part E 1.5 of the BCA;

(e)         in the absence of details regarding the provision and location of the fire control centre facility required by Part E 1.8 of the BCA in respect of a building like the present exceeding 25 metres in height, it is not possible to ascertain whether or not the building complies, so as to justify issuing an approval for building work to commence;

(f)         similarly, in regard to the sprinkler alarm valve room required by Clause 6 of Specification E 1.5 of the BCA;

(g)         likewise in respect of the automatic smoke detection and alarm system which must be provided for a Class 2 building with an effective height exceeding 25 metres (and fire isolated stairways serving any storey above 25 metres being provided with an automatic stair pressurization system) to satisfy Part E.2 of the BCA (Table 2.2a);

(h)         likewise as to emergency lighting and warning systems required in a building of that height under Part E4.9;

(i)          there is an absence of details of door and window dimensions in the architectural drawings such that any assessor or certifier would be unable to ascertain whether or not the building complies with Part F4.1 and F4.2 of the BCA in respect of natural lighting required for the building;

(j)          likewise, in respect of ventilation in the building generally, and in the carpark in particular, for purposes of Part F4.5 and F4.6;

(l)          there are no details of the stormwater drainage system and design external ground levels to permit any assessor or certifier to ascertain whether or not the building complies with Part F1.1 of the BCA, which calls for stormwater drainage to comply with AS/NZS 35000.3.2; nor is there any evidence of the approval of the local government for connection of the stormwater drainage of the premises to the local government’s stormwater drainage as required by s 40(1)(a) of the Standard Sewerage Law;

(m)        C2.6 of the BCA requires vertical separation of openings in external walls for a building of Type A construction, that the building have safeguards to prevent the spread of fire from floor to floor or between adjoining units or parts of the building, in order to permit occupants to evacuate to facilitate fire brigade intervention and limit property damage, but it is impossible to determine whether compliance has been achieved in the absence of window dimensions and clear details on the south and north elevations on the plans accompanying the application.

Consistently with the serviced apartment/accommodation building approach Mr Wilkins proceeded on the basis of the proposal being for a class 3, rather than – class 2 building, which I would rule the proposal to be; nothing was shown to depend on the difference.

1. AS to BCA aspects, Mr Kay concludes:

“Detail of Drawings Generally
4.6.3.52 The plans contain very few dimensions to show the size and construction of the building. The dimensions provided basically show the clearances from the site boundaries, nominal dimensions for the car parking bay sizes, lower ground floor level, ground floor level and roof level with a typical floor to floor height. I am unable to calculate floor area or determine dimensions within the building to check compliance with the Building Code of Australia or compliance with site drawings. It is worth commenting that the drawings contain a note to use figured dimensions in preference to scale. The cover sheet of the approved plans contains a repeat of some of the relevant Clauses of the BCA but this does not assist in determining that the building, if constructed in accordance with the drawings, will comply with the Standard Building Regulation and the BCA.

4.6.3.53 The absence of detailed architectural drawings, structural drawings, hydraulic fire service drawings, roof water and storm water drainage drawings, mechanical ventilation, drawings, smoke hazard management drawings and emergency warning/lighting systems drawings effectively means that a builder could not commence building work using only the currently approved plans.

4.6.3.54  Other areas of compliance that were not able to be checked because of the lack of detail included (see Appendix T):
(a)  Exits and travel distances from the ground level restaurant and retail tenancies in Part D1.4.
(b) Handrails and balustrade heights and construction details to reduce climbing by young children, falling objects from balconies and over balancing by adults in Part D2.16.
(c)  Details of stair treads and risers in Part D2.13.
(d)  Suitability of access for persons with a disability in Part D3.2
(e)  Materials of construction of external window screens for compliance with Specification C1.10.

4.6.3.55It is my opinion that in the absence of sufficient details to assess against the BCA, a building certifier would be unable to undertake a proper assessment of any application and would therefore be unable to issue a decision notice for building work to commence.”

Even if Mr Kay be regarded as excessively pedantic, the nature and number of his points underlines that the third respondent has proceeded with inadequate design detail available, and adopted the approach of issuing an approval now, on the faith of things being regularised in due course.

“Certificates” relied upon by building certifier: SBR ss 22, 23

1. There are two sections presently relevant in the Standard Building Regulation 1993 which establish qualifications to the proposition that a private certifier must not proceed unless provided with sufficient detail of the development proposal to form an independent assessment as to whether or not the requirements of the BCA have been met:

“22  Engineering drawings required for certain developments

(1)         This section applies if, in relation to a development application, engineer’s drawings or other engineering details are required.

(2)         If the drawings or details are not included with the application, the application must not be approved unless the approval is subject to the condition that –

(a)work on the footings must not start until the drawings and details for other footings have been approved; and

(b)a stage of the building work must not be started until the drawings and details for the stage have been approved.

23Optional acceptability of certificates

(1)   A competent person may certify that a material, system, method of building or other thing whatever to which certified information relates will, if installed or carried out in accordance with the certified information, comply with this regulation.”

While s 22 undoubtedly applies, no condition as referred to in sub-s (2) was included. It followed that “the application must not be approved.” Mr Gore referred to condition 2.4 (“Changes to the certified plans are to be submitted to Coastline Building Approvals for amended approval”). That condition meets neither the letter nor the spirit of s 22(2); it is not recognisable as an attempt to apply the section. In my opinion it is necessary for an expression such as “work must not start” to be included.

1. As to s 23, reliance was placed on documents asserted to be certificates under the section (by s 5 “a competent person” is one who “in the opinion of the building certifier is competent to practice in the aspect ....” and is registered or licensed as required under Queensland law).

1. The “Structural, Civil, Traffic and Environmental Engineering Design Certificate” relied on by the respondents here, appropriately signed, is as follows:

“Design
We, Connell Mott MacDonald, Consulting Engineers, hereby certify that this office has been engaged to undertake the structural, civil, traffic and environmental design of the above project.  Our proposed drawing list is attached.

The abovementioned building work will be designed in accordance with the relevant provisions of the Standard Building Regulations, Part B1 of the BCA, the relevant Australian Standard Codes and local council requirements and following accepted engineering practice and principles.

The drawings and reports will be checked by a qualified engineer within this practice who was not involved in the original design work.

Inspections During Construction

We further certify that we have been commissioned to undertake periodical inspections of the structural and civil engineering elements during the construction phase.

CONNELL WAGNER PTY LTD (Trading as Connell Mott MacDonald)”

One would assume it is through inadvertence that the author purports to “certify” no more than the Consulting Engineers’ engagement: there is simply no certification recognizable as coming within s 23(1). “Certified information” is defined in s 5 to mean “the technical details, particular plans, drawings or specifications given and certified by a competent person.” Here, there are no plans. There is a list of plans proposed to be drawn, as indicated in the “certificate”. There is no “certified information” to bring s 23 into play. Whether the engagement of the company will continue is a matter of speculation.

1. Another certificate relied on on the basis of s 23 entitled “Certificate of Compliance – Hydraulic and Fire Services Design Certificate pursuant to Standard Building Law and Sewerage and Water Supply Act including BCA” again commences by reciting the certifier’s engagement.  It proceeds:

“We certify that the hydraulic and fire services for the abovementioned project will be designed in accordance with the provision of the Standard Building By-laws 1991, Sewerage and Water Supply Act 1949 and BCA.”

There follows a list of relevant Australian Standard Codes, Specifications and references to be relied on in the design.

1. The foregoing, in my opinion, exhibits elements of futurity entirely at variance with what s 23 requires, namely extant technical details, plans, drawings and specifications, being certified as appropriate – putting it another way, “information” which is capable of being certified.  The purported s 23 certificate of another firm of consulting engineers is no better.  It commences:

“           ANZAC PARADE, YEPPOON

PROPOSED DEVELOPMENT

We hereby certify that we have been engaged as Consulting Engineers on the above project and that we will undertake the design of the mechanical, electrical, fire detection and lift services for the above project to comply with relevant Australian Standards and the Building Code of Australia. Such standards would include the following:

·AS 1668.2 Ventilation and Air Conditioning

·AS 1670.1 Fire Detection and Alarms

·AS 2293.1 Emergency Evacuation Lighting for Buildings

We envisage that our documentation would include the following drawings …”

The architect, Mr Christensen, may have done his job.  Otherwise, the Respondents have done no more than assemble a group of consultants who intend to do relevant design work.

Sewerage Issues

1. The provisions of the Standard Sewerage Law under the Sewerage and Water Supply Act 1949 refer to local government approvals which are pertinent in the present circumstances. Section 17 provides that a person must not interfere with a local government’s sewerage system (defined in Schedule 2 to mean infrastructure used to receive, transport and treat sewage or effluent, and consisting of some or all of sewers, access chambers, vents, engines, pumps, structures, machinery, outfalls and works not included in that list). “Interfere with” includes dig up, expose and damage. Section 19 provides that a person must not, without the local government’s approval, build something over a sewerage system or property sewer, if the building of the thing, or the thing as built, would stop access to a sewer forming part of the sewerage system or the property sewer, place material over an access chamber, increase or reduce the amount of cover over a sewer or change the surface of land in a way causing ponding of water over an access chamber. There are existing sewer lines traversing both the north and the south of the development site; proposed work would affect them (the northern one, at least) so as to require approval under the provisions being discussed. No such approval has been sought, let alone obtained. What is proposed by way of sewerage arrangements for the building would render the existing northern line redundant, but other interests than the developer’s are involved. The northern line, for example, serves other property: new arrangements, accessing a new inlet to a different line, will be required. At the south-east of the site it is shown that uncertainty exists as to present and/or future ground levels and the cover available for a sewer line. Doubtless, engineering solutions can be found to produce satisfactory outcomes.

1. The Council’s case in relation to the southern line has not been made out.  The only work proposed near to it is an open ground level car park, with a squat retaining wall at the edge.  The point remains that statutory approvals are required before the building work envisaged can proceed, which have not been obtained, or even sought. 

Do discretionary considerations preclude relief?

1. The specific prohibition affecting private certifiers in s 56 of the Standard Building Regulation 1993 (set out in [32]) has been ignored, likewise the prohibition in s 22(2) of the same Regulation, likewise that in s 5.3.5(4) of the IPA.  Quite apart from the statutory prohibitions which have been ignored, there exists here the situation which in my opinion the provisions do not contemplate, of a purported decision based upon and apparently approving plans which do not yet exist.  Essentially, no more is available than the architect’s concept for the building.  Important matters such as fire safety have not been gone into; the third respondent proceeded to the decision stage without doing what was contemplated in the proceeding referral stage. 

1. Against the proposition that it should follow that the court declares the decision invalid, it is said that powerful arguments are available.  It is clear that where multiple applications are to be made, this court should not pre-judge the outcome of them, but should allow them to take their course.  See Walker v Noosa Shire Council (1983) 2 Qd R 86, 89. It does not matter that, to all present appearances, the relevant decision maker, here the Council, may have indicated what its attitude might be: ibid.  This court should do nothing to attempt to influence any future decision:  Welsh v Burke Shire Council (1997) QPELR 72, 75. What distinguishes the present circumstances is the scheduling required by legislation which is to the effect that the approvals presently lacking, or some of them, must be obtained before the making of the impugned decision.

1. Then, it is said that it is highly undesirable to use the declaratory power in s 4.1.21 of the IPA to declare development approvals invalid.  Judge Brabazon said in Greatlife Pty Ltd v Brisbane City Council (2001) QPELR 42, at 45:

“Attention also has to be paid to the presence of s.4.1.22(2) of IPA.  Here, Greatlife is seeking declarations.  One declaration is for the development approval.  If a declaration to that effect were made the Court also has power to make “an order about the declaration”.  In that case subs.(2) provides:

‘if the order amends or cancels a development approval the Court may only make the order if the Court is satisfied the approval was obtained by fraud by the applicant.’

That provision is of uncertain effect.  Mention has been made of it, thought not conclusively, in Clayton v. Miriam Vale Shire Council (2000) Q.P.E.L.R. 320 and in Tropic Isle Retail Stores v. Whitsunday Shire Council (2000) Q.P.E.L.R. 442. The intention seems to be that, at least in certain circumstances, an approval will be preserved notwithstanding earlier irregularities.”

Judge Quirk said in Queensland Investment Corporation v Gold Coast City Council (2001) QPELR 83, at 85-85:

“[8]     This has prompted a submission from the Second Respondent that proceedings under s.4.1.21 should be in the nature of judicial review and that there is no room for a “merits based” review of a decision to grant a development approval.  While one can readily appreciate the undesirability of seeing s.4.1.21 as simply an easier alternative (for an appeal) to other more closely controlled appeal provisions, it is unnecessary to go further into that matter at this point because the Applicant’s contention is that what is being sought is not a “merits based” review of the decision but declarations that, because of matters that were raised, the relevant decision was a nullity.  Whether this decision ought to have been made as it was appears to come within the ambit of s.4.1.21(1)(a) and I accept that it is a matter about which a declaration might be made.

[9] Section 4.1.22 (which enables a court to make orders about declarations) raises more difficult considerations particularly in subs.(2) which provides:

‘However, if the order amends or cancels a development approval, the Court may only make the order if the Court is satisfied the approval was obtained by fraud by the applicant’.

In this case a development approval was issued and clearly the object of the exercise undertaken here is to put an end to the rights of the Second Respondent which that development approval has given.  Nevertheless the Applicants argued that they were not seeking any amendment or cancellation of the development approval and I appreciate that subs.(2) governs only subs.(1) which specifies an “order about a declaration” made under s.4.1.21.  As a matter of strict construction subs.(2) does not stand in the way of any declaratory relief.

[10] It seems unusual however that it was the legislative intention that a court might, in certain circumstances, make declarations about a decision but is precluded from making consequential orders, which in a logical and sensible way, give effect to such a declaration. Counsel for the Second Respondent made the interesting suggestion that s.4.1.22(2) really gave effect to the purpose of the IPA in restricting matters capable of being appealed under the various “appeal” provisions to those provisions.  He pointed out that no “development approval” can take effect until the opportunities for appeal have been exhausted.  Once that point is reached development approvals should be immune from attack unless the special and identified circumstances are demonstrated.

[11] Development approvals or permits, once issued, are matters of some consequence and parties (not always those involved in the application) often commit considerable resources to development on the basis of such approvals or permits. As a matter of public policy confidence in the IDAS process is important and that confidence might be weakened if the possibility of an approval’s being declared void (perhaps because somewhere in the process some step required to be taken is overlooked) endures indefinitely. I appreciate that the discretion which the Court has to grant relief of this kind may be able to cope with this difficulty but as the legislature has seen fit to include s.4.1.22(2) in the Act it would be better if its intended purpose was made clearer.

See also Jezreel Pty Ltd v Brisbane City Council (2001) QPELR 92, 95.

1. Such decisions owe much to concern as to the effect of the former s 4.1.22(2), as to which see the discussion by Judge McLauchlan in Clayton v Miriam Vale Shire Council (2000) QPELR 320. I am unconvinced that any sufficient basis would exist in it for declining to make a declaration if, as I think is the situation here, there is shown a clear case of the assessment manager not only overlooking the failure of others, but also the assessment manager’s own failure to comply with steps required by legislation, but also deciding the development application in the face of specific statutory provisions that it must not be decided in the applicable circumstances.

1. There is considerable force in what Judge Quirk said in his paragraph [11] quoted above, quite apart from anything it may owe to the IPA provision mentioned, which has now been repealed. The new s 4.1.22 of the IPA is:

“4.1.22  Court may make orders about declarations
(1)         The court may also make an order about a declaration made under section 4.1.21.

(2)         If the order cancels a development approval, the court must also make the order it considers appropriate about any loss the owner of the premises, the subject of the development approval, will suffer as a result of the making of the order.”

This leaves it open to the court to order cancellation of the third respondent’s decision(s).  In my opinion, the “paragraph [11]” considerations are almost totally absent here.  The developer can fairly be treated as having adopted an experimental approach which would enable it to bypass the Council, for the most part.  No third party rights have arisen or been affected.  There has been no significant expenditure of money or effort which may go to waste if the court interferes.  It is common ground that if the decision is set aside, the development application remains before the third respondent, who may process it appropriately, and in due course “decide” it.

1. The court has a broad discretion to refuse an injunction, however unanswerable the applicant’s case may be.  See NRMCA (Qld) Ltd v Andrews (1993) 2 Qd R 706; (1992) 75 LGRA 64; ACR Trading Pty Ltd vFat-Sel Pty Ltd (1987) 11 NSWLR 67, 82-83; Warringah Shire Council v Sedevic (1987) 10 NSWLR 335, 339-341. Those authorities were considered in this court in Queensland Cement Ltd v United Global Cement Pty Ltd (1999) QPELR 167.

1. Apart from a general proposition (which I reject) along the lines that any slips or errors that have occurred in the present situation ought fairly to be overlooked, and that the court ought to have confidence that everything will be in order by the time the building is actually constructed, Mr Gore placed reliance on a supposed principle that would prevent the Council from doing indirectly what it is not entitled to do directly (but wants to do) namely, prevent or oppose or somehow control construction of a 12 storey building in Yeppoon.  He cited cases such as Harderan Pty Ltd v Logan City Council (1989) 1 Qd R 524, 528, where Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735, 793 was referred to in the context of constitutional prohibitions not being permitted to be circumvented and Oxley County District Council v Macleay River County District Council (1964) 65 (SR) NSW 13, 28; (1964) 82 WN (Part 2) (NSW) 12, 24.  It is difficult to accept Mr Lyons’ submission that the principle applies only to constitutional prohibitions and the like (see Caltex Oil (Australia) Pty Ltd v Best (1990) 170 CLR 516, 522). However, it cannot simply be contended that the Council, in using any legal means open to it of challenging a questionable decision of a private building certifier upon a questionable development application (questionable in the sense that it might have called for an impact assessable application for Material Change of Use) is doing anything untoward, or irregular. In NRMCA at 712, the Court of Appeal mentioned, with apparent approval, a statement in Sedevic at 339-341 that:

“Where the application for the enforcement of the Act is made by … a Council, a court may be less likely to deny equitable relief than it would in litigation between private citizens … because … the Council are seen as the proper guardians of public rights.  Their interest is deemed to be protective and beneficial, not private or pecuniary.”

1. The public interest in the law being upheld, from the “aspect of discouraging potential developers from thinking that planning requirements may lightly be disobeyed” was recognised by the Court of Appeal in Mudie v Gainriver (2002) 2 Qd R 53, 59.

1. In circumstances such as the present, there is often some mystery as to whether an impugned decision is void, so that it is a nullity, not counting for anything at all, or mere voidable, so that it requires some determination by an appropriate tribunal in proceedings such as the present to do away with it.  There are related issues thought to flow from whether statutory requirements are mandatory or merely directory, where important consequences may flow from the distinction.  The High Court has sought to resolve such issues in terms of a simple test of the legislative intent in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. The Council claims that what has occurred here is jurisdictional error, such that the third respondent’s decision is “no decision at all”: Plaintiff S 157/2002 v Commonwealth (2003) 77 ALJR 454. 470 (para [76]).

1. There do not seem to be too many examples of decisions made in the face of statutory provisions expressly stating that the decision must not be made.  An example is Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135. Declarations and injunctions corresponding to those sought here were granted at first instance by Debelle J, then set aside by the Full Court of South Australia, whereupon the matter came to the High Court. One of the issues was characterisation of a proposed development as “special industry”, which the applicant Council contended was appropriate. At first instance, Debelle J agreed. On that basis, the Full Court thought (wrongly according to the High Court) that the Development Assessment Commission’s (and the developer’s) characterisation as “general industry” ought to have been accepted without inquiry. If the development were “special industry”, s 35(3) of the Development Act 1993 (SA) provided that:

“The Development Plan must not be granted a Provisional Development Plan Consent unless –

(a)… the Minister and, if the development is to be undertaken in the area of Council, that Council, concur in the granting of the Consent …”

The Enfield Council “complaint was that the provisional Development Plan Consent was invalid because the Commission had erred in determining ‘the jurisdictional facts’ upon which depended its power to grant consent, in particular by its classification of the proposed development as not ‘special industry’ ” (p 142).  At 149 Gleeson C J, and Gummow, Kirby and Hayne JJ said (149):

“S35 mandates circumstances in which the relevant authority must give (s 35)(1)) or refuse (s 35 (2),(3)) … consent … it is not for the relevant authority itself to determine, as a matter of its opinion, whether the restriction imposed upon it by s 35(3) applies because the development is a “non-complying” development.”

1. Their Honours said at 151 that:

“in whatever form the proceeding in the Supreme Court had been cast, it would have been necessary for Debelle J to determine the ‘jurisdictional fact’”

and at 155-56:

“it was the task of Debelle J to determine the question of the jurisdiction of the Commission upon the evidence as to “special industry” before him, as opposed to the probative material which had been before the Commission, and upon his construction of the relevant provision.”

1. Although the Enfield controversy went back to the South Australian Supreme Court, it is inherent in what was said in the High Court that a decision or determination legislation says must not be made cannot withstand challenge by a person with a proper interest, subject to the court’s discretion to refuse or decline to grant relief.  Here, in my opinion, there are strong considerations, along the lines of those recognised in Mudie, indicating that the court should act.  Not the least of those is the importance understandably ascribed in the Hansard material referred to above of protecting the integrity and public standing of the new private certifier system introduced by the IPA.  This is a novel approach in building or development approval matters, somewhat at variance from the “one stop” IDAS approach which seeks to relieve a development applicant from having to knock on many doors itself:  it is clear that the private certifier may have to knock on many doors (or the applicant may have to) before the private certifier is permitted to decide a development application properly made to him, her or it.  The public are unlikely to develop confidence in the new system if the court declines to interfere when clear statutory requirements are overlooked or deliberately ignored. 

“Compliance issues”

1. The Council raised what Mr Gore called “compliance issues” in terms of requirements of Part 7 of the Planning Scheme relating to:

(a)        The quantum of landscaped open space area (7.3.4.3);

(b)        The quantum of deep planting (7.3.4.7);

(c)        Site occupancy (7.3.5);

(d)        Shadowing (7.3.8.1);

(e)        Parking requirements (7.3.2);

(f)        Boundary clearances (7.3.3).

1. Of the above, (f), if ever an issue, went away, as did (d).  As to (e), the usefulness of the Council’s apparently thorough scrutiny of the Architect’s plans has been demonstrated by a revision of parking arrangements proposed in them which are undoubtedly an improvement, if only in rendering a couple of parking spaces close to a security door and its housing accessible.

1. Although they do not loom large in the overall picture in this application, the other “compliance issues” were the subject of argument and it may be useful to have the court’s view about them stated.  As to (a) the major issue is developer’s ability to include “podium” landscaping, that is landscaping above street level (this applies to Barry Street) which, however beneficial to occupants of the building, may make a reduced, minimal or even no contribution from the point of view of people at street level outside the site.  The evidence shows that podium landscaping is common, although, personally, I would be inclined to experience it as a poor substitute for landscaping on the ground; those considerations do not determine the issue.  Although the planning scheme provisions are not identical, there is no reason to depart from the views expressed in SeymourCBD v Noosa Shire Council (2002) QPELR 226; podium landscaping is not acceptable. Beyond that, I accept the analysis of Mr Van Pelt, which excludes areas identified by him as A, B and C, on the basis that they do not serve the function intended for landscaping; (a), for example, is an outdoor eating area attached a restaurant, not available for general use, even by occupants of the building, unless they patronise the restaurant.

1. The question in relation to “deep planting”, apart from supplying the missing definition of the term, is whether it must be located at street frontages.  The Architect’s plans are misleading in suggesting deep planting area along Anzac Parade. Except for one small triangle at the south-eastern corner, perhaps sufficient for one substantial tree, there is no scope for deep planting, on any reasonable interpretation of the notion, nothing (or very little) more than about 600 or 800 millimetres deep. A triangle in the northern corner is misleadingly represented as equivalent to that in the southern corner because it can be seen, by reference to other plans, to be located on top of a building.  The deep planting requirement appears not to be met here.  I agree with the parties that in 7.3.4.7, the reference to “an area an average of (three) (3) metres deep” is to a measurement in a horizontal (as opposed to a vertical) direction from the street frontage.  The “deep planting” may, but need not be located in the 3 metre strip.

1. As to (c) site coverage, the parties are agreed that site cover restrictions in respect what might be called the accommodation tower are met.  The Council contends that the same percentage site cover limit should be projected down to ground level, where it ought not to be exceeded; the developer submits that different site cover and setback restrictions (effectively, none) apply to the commercial uses at ground level.  7.3.5 of the Planning Scheme is:

“Premises proposed to be erected for use as an accommodation building or a multiple dwelling shall not occupy more than –

.1    forty (40) per centum of the site if no part of it is higher than two (2) storeys;

.2    thirty five (35) per centum of the site if any part of it is three (3) storeys in height and no part of it is higher than three (3) storeys;

.3    thirty (30) per centum of the site if any part of it is four (4) storeys in height and no part of it is higher than four (4) storeys;

.4    twenty five (25) per centum of the site if any part of it is five (5) storeys or more in height.”

1. The interpretation of the above cannot be affected by lack of demur on the part of the Council officers at the meeting described by Mr McKone.  On the face of it, 7.3.5 applies to the whole building, even if parts of it, at ground level, may be erected for other uses.  Any other approach appears to involve contemplating that there are multiple premises on the same site.  “Premises” is defined to mean “any land, building, or other structure, or any part thereof” (unless the context otherwise indicates or requires); this may seem to permit multiple premises for purposes of site cover requirements, attracting two or more different controls.  However, 7.3.1 provides:

“7.3.1The provision of this Division shall apply to buildings and appurtenant structures which are to be used wholly, or in part for the purpose of accommodation units, or multiple dwellings and which are to be erected after the appointed day (whether or not the Consent of the Council to the use of any land, building or other structure for the purpose is required under this Planning Scheme).”

1. Although, by the definition section, “building” can include part of a building, it strikes me as unacceptably artificial to be making distinctions of that kind.  There is no definition of “accommodation unit”, which I think must be construed as meaning “accommodation building”; it follows that 7.3.1 has effect to make 7.3.5 applicable to the building presently proposed.  At least that is so, in the absence of the developer’s pointing to any other provision in the Planning Scheme giving primacy to other site cover arrangements for the proposed ground floor uses.

1. That is not an end of the matter, as the Scheme allows for the desired ground floor (non-residential) uses in 7.3.15:

“Notwithstanding the above provisions, the Council may dispense with or modify all or any of the requirements therein if it is considered that dispensation is justified having regard to the proposed uses on the ground floor of an accommodation building or a multiple dwelling, the amenity of the area or the existing or proposed development of the area, the area dimensions and configuration the allotment, the nature and use of the land, the topography and any other factors considered relevant.”

1. Having to approach the Council under 7.3.15 may not be congenial to the developer.  In my view, it is what the Scheme requires, if the 7.3.5 restrictions are to be relaxed at ground floor level, which I take to be necessary, whether what is above is an accommodation building or a multiple dwelling.

The case for the building certifier

1. Mr Cochrane appeared for the third respondent.  Essentially, he adopted Mr Gore’s submissions.  He submitted that his client was entitled to rely on the developer’s assertions as to the intended use of a building he was asked to approve.  This is an area in which “circumstances alter cases”.  Section 5.3.8(1) of the IPA must not be overlooked.  It provides:

“a private certifier must always act in the public interest when performing the functions of a private certifier.”

1. My approach in Kilmister v Gold Coast City Council (4353 of 2001, 11 October 2001) was that the same level of vigilance that would be expected of a local government assessing a development application should be expected from a private certifier.  In that case, which was a more glaring one than the present, I considered the private certifier was presented with an application which ought to have induced a degree of scepticism, rather than the credulous, trusting response which was forthcoming.  Mr Kilmister suffered a finding that he was guilty of “professional misconduct”, a concept defined amazingly widely by s 3(1) of the Building Act 1975, which was confirmed on appeal to this court. Although Mr Wilkins was apprehensive at one stage that the Council had made a complaint to the Building Services Authority against him in respect of this matter, that appears not to be the case. I was assured by Mr Lyons there is no complaint being pursued.

1. Pine Mountain Court Pty Ltd v Valente (2000) QPELR 265 is an example of an unsuccessful application similar to the present one, involving a private certifier. No suggestion appears to have been made before Judge Quirk that a private certifier’s decision could not be reviewed.

Conclusion

1. The effect of these reasons is that the applicant Council is entitled to the relief it seeks.  It is appropriate to allow the parties adequate opportunity to reflect on these reasons and suggest, if so advised, different declarations and/or orders “about” them under ss 4.1.21 and 4.1.22 of the IPA.