Mackenzie v Noosa Shire Council
[2021] QPEC 61
•1 October 2021, ex tempore
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Mackenzie v Noosa Shire Council [2021] QPEC 61
PARTIES:
DENIS MACKENZIE
(applicant)v
NOOSA SHIRE COUNCIL
(respondent)FILE NO/S:
1825 of 2021
DIVISION:
Planning and Environment
PROCEEDING:
Originating Application
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
1 October 2021, ex tempore
DELIVERED AT:
Brisbane
HEARING DATE:
1 October 2021
JUDGE:
Rackemann DCJ
ORDER:
The originating application is dismissed.
CATCHWORDS:
PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the applicant seeks a declaration under section 11 of the Planning and Environment Court Act 2016 (Qld) concerning the calculation of site cover for a proposed building – where the proposed building is the subject of a building application – where an earlier building application was made to a private certifier and referred to the Council – where the Council took issue with the calculation of site cover in a request for information – where the applicant amended its plans which led to a satisfactory referral response and approval – where the applicant made a further application for a new building approval which added previously excluded elements back in – where the applicant asked the building certifier to put the application on hold until the applicant could get a declaration from the Court in relation to the proper calculation of site cover – where non-compliance with site cover percentages in an acceptable outcome was a trigger for development moving from accepted development to code assessable development – whether the application for declaratory relief is directed towards the determination of a legal controversy or an abstract or hypothetical controversy and is advisory in nature – where any decision on the development application can be appealed – where the current application has not yet been referred to Council
LEGISLATION:
Planning and Environment Court Act 2016 (Qld) s 11
COUNSEL:
A Skoien for the applicant
M Batty and R Yuen for the respondent
SOLICITORS:
P&E Law for the applicant
Thynne + Macartney Lawyers for the respondent
This is an application for a declaration under section 11 of the Planning and Environment Court Act 2016 (Qld), concerning the calculation of site cover for a proposed building which is the subject of a building application that has been lodged by the applicant with a private certifier. The application was lodged under cover of a letter dated 22nd of July 2021. That letter stated that the site cover of the proposed building was such that the application would require referral to the Council, but the certifier was asked to refrain from deciding the application pending the resolution of this proceeding. There is no evidence that the current application has, as yet, even been referred to the Council.
The background to the matter concerns an earlier building application and approval. The earlier application was made to the same certifier last year and was referred to the Council for reasons other than site cover. The Council made a request for information in which it took issue with the calculation of site cover. The applicant decided not to take issue with that, but, rather, amended its plans, which then led to a satisfactory referral response and an approval, which was issued on the 24th of May 2021. It commenced works in accordance with that approval.
The applicant apparently took some legal advice to the effect that the Council’s view about the calculation of site cover was incorrect and that there was no real need to make the changes which he had made in order to reduce the site cover. He decided to make a further application for a new building approval, with previously excluded elements added back in, but asked the building certifier to put the application on hold until he could get a declaration from the Court to, in effect, vindicate his view of the proper calculation of site cover. The calculation of site cover is of some relevance because non-compliance with site cover percentages provided for in the acceptable outcomes to PO8 of the criteria for assessment within the Low Density Residential Zone Code within the Noosa Plan 2020 is a trigger for development moving from accepted development to code-assessable development. If the development is code-assessable the building application would require referral to the Council.
The Council contends that the Court ought not entertain the application for declaratory relief because it is not directed towards the determination of a legal controversy, but rather an abstract or hypothetical controversy and is advisory in nature. Further, any decision on the development application adverse to the applicant can be challenged by the applicant by exercising its right of appeal.
It was submitted for the applicant that the declarations are in relation to things done by the Council in respect of the earlier building application and in respect of the current application. It is apparent, however, from the facts that I have traversed that the first application and the things done by the Council in response to the application being referred to it were not the subject of controversy. The Council made an information request. The applicant raised no issue with that request. It lodged amended plans which satisfied the issue which had been raised and obtained an approval.
It is also apparent that, as yet, the Council has done nothing in respect of the current application, there being no evidence before me that the current application has even been referred to it. The applicant, in truth, simply has a lively anticipation of the view that the Council will take of its calculations of site cover in the event that the new application is referred to it and is no doubt apprehensive about the Council’s response as a consequence. It should be noted that one can only, at this stage, speculate upon what the Council’s response will be. In preparation for the hearing of this matter the Council had the issue of site cover looked at by an independent expert who expressed his opinions. Whether those opinions are adhered to by the Council when the matter is referred to it is a matter for the future.
In his letter lodged with the application to the private certifier the applicant himself asserted that the site cover of the new application exceeds that provided for within the acceptable outcome, such as to trigger the requirement for referral. In carrying out code assessment, the Council would then have to consider the relevant performance outcome, which itself makes no reference to the quantum of the site cover. Accordingly, just because the site cover exceeds that provided for in the acceptable outcome, so as to require referral, or exceeds it to a greater extent than the applicant believes or contends for, or exceeds it to a lesser extent than the Council contends, does not necessarily mean that the proposal would be judged to offend the performance outcome. Consequently, it could not be said with confidence that the dispute, insofar as there is any dispute once the Council receives the development application, about the calculation of site cover will be determinative of the Council’s attitude about the compliance of the proposal with the performance outcome.
It was said by counsel for the applicant, in the course of submissions, that if his client’s contention in relation to the way site cover should be calculated is correct then, contrary to what was said in the letter accompanying the application and what appears on the application plans, the site cover would, indeed, comply with that stated in the acceptable outcomes so that it does not require referral at all. That was not something about which a declaration was sought, and the private certifier, being the assessment manager, was not joined to this proceeding so as to bind the decision maker in relation to a decision on referring the application. Ultimately, counsel for the applicant made it clear that the Court was not being asked to determine whether or not the building application is referrable..
It should be noted that, of course, at this stage it is unknown whether the matter of site cover, to the extent that it becomes an issue in the building application, will be the only issue that arises with respect to that application.
It will be apparent from what I have said that what is sought to be done here is to pick out what the applicant anticipates as being an issue likely to arise in an application which has yet to be referred to the Council and which might have an impact upon its response in the event of referral. At this stage, it appears to me that the respondent is correct in its characterisation of the proceeding.
It was submitted by counsel for the applicant that if the Court were to determine the matters which the applicant was inviting it to consider then it would assist in the way the building application progressed. He spoke of the potential for the decision to lead to his client considering whether it would amend its application currently before the private certifier. That tends to underscore the advisory nature of the declarations which are sought. For the reasons I have given, the declarations are not ones which I am prepared to make in the exercise of my discretion. The originating application is dismissed.
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