McDonald's Australia Ltd v Brisbane City Council & Roca Properties Pty Ltd

[2010] QPEC 44

[2010] QPEC 44

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 2947 of 2009
P & E Appeal No 1313 of 2010

McDONALD'S AUSTRALIA LIMITED (ABN 43 008 496 928)	Applicant
and
BRISBANE CITY COUNCIL	First Respondent
and
ROCA PROPERTIES PTY LTD (ACN 107 102 536)	Second Respondent

BRISBANE

..DATE 06/05/2010

ORDER

CATCHWORDS

Sustainable Planning Act 2009 s 350, s 440, s 818, s 820 Integrated Planning Act s 3.2.1, s 3.2.9, s 4.1.5A

Appellant's development application did not include land adjoining the site across which an access driveway to Archerfield Road was to be provided - the land had been acquired by the respondent Council for road purposes and was registered in its name as acquiring authority, but had not yet been dedicated as road - whether development application "properly made" in appeal resolved, such that there be an approval on conditions - whether development application "properly made" - relief that might be apposite granted on originating application under new legislation

HIS HONOUR:  There are two matters before the Court.  The
principal one is McDonald's Australia Limited's appeal against
the Council's refusal of its development application which
proposed a McDonald's restaurant at a site at Richlands
bounded by Archerfield Road, Government Road and Progress
Road.  The site's western neighbour was a child-care centre
operated by the co-respondent submitter.  It appeared by
solicitors on the telephone for the purpose of indicating its
being content with the outcome worked out between the
appellant and the Council.  The solicitor was then given the
leave he sought to withdraw.

The only feature of the proposed order incorporating a
conditions package of a familiar kind prepared by the Council
in accordance with which the proposal might proceed is a
change made to the plans which were the subject of public
notification.  Those are minor from any point of view and, in
particular, satisfy the concept of "minor change" for purposes
of changing a development application, whether that be the one
defined in s 350 of the Sustainable Planning Act 2009 (SPA) or the concept applied under s 3.2.4 of its predecessor, the
Integrated Planning Act 1997 (IPA).

The change occurs on the Progress Road frontage of the
proposed building.  It involves the omission of an indentation
in the wall which, according to the plans before the Court,
was about a car length in length and something less than a
car's width in depth.  That indentation was going to separate
the cashier's counter and the server's counter.  Omission of
it will provide more space for storage, et cetera, inside the
building and it seems have no impact whatever outside the
building.

The space wasn't earmarked for landscaping or the like.  The
facade may perhaps be regarded as less articulated and having
less visual interest, but that seems to me a matter of scant
moment given the nature of Progress Road.  The change to a
more bland, or less interesting presentation of the building is exacerbated by the other change in the proposal which links
the two separate awnings over the roadway designed to provide
shelter by making one continuous awning.  There is no other
change.  On no view could it be contended that the development
was substantially different from that which was publicly
notified.

The other matter before the Court is an originating
application filed on the 30th of April 2010.  That seeks a
declaration pursuant to section 818 of the SPA that a change to the development application the subject of the appeal,
which is 2947 of 2009, involving the inclusion of lots 200 and
201 on plan SP 122787 as land subject of the development
application is minor change within the meaning of that
expression in the relevant legislation.

It is also sought in the originating application that it be
ordered, pursuant to section 820 of the SPA, that
notwithstanding the applicant's noncompliance with section
3.2.1(7)(c) of the Integrated Planning Act 1997 in respect of
the relevant development application, the appeal should
proceed to a determination on the merits. This is about the “mandatory requirement” for the approved formal IDAS Development Application that there be “an accurate description of the land” imposed by s 3.2.1(2)(a).

The new application owes its genesis to a recent communication
from the Council notifying that the driveway providing the
sole egress from the restaurant which is egress to Archerfield
Road is located on the two lots identified which were not
identified in the development application as relevant “land to
which the application applies”; section 3.2.1(10)(a)
effectively required such an application to contain that
consent in writing.  There is no owner’s consent, assuming
lots 201 and 202 are.

Ordinarily, the consequences of omission of such land are that
the application is not a properly made one and not one that the Council could accept and it may be that it's one incapable of being assessed under the IPA. 

The status of those two lots is special.  They are not private
land as considered in Bon Accord Pty Ltd v Brisbane City
Council [2008] QPEC 119; [2010] QPELR 23, but Council land which came to be such pursuant to compulsory acquisition by the Council for purposes of dedication as road.

The dedication hasn't occurred yet, although the acquisition
has, and been perfected by registration of the Council as
owner in the Land Titles office.

The lots are each L-shaped around the corner of Archerfield
Road and Progress Road.  One nuzzles into the other, and one
can speculate that the explanation was that the extent of the
original acquisition by the Council came to be considered
inadequate for necessary road widening.  It's understandable that anyone concerned with the site from which those two lots have been excised, or the general area, would have regarded the two lots as road.

The present circumstances are analogous to the situation in
Queensland Investment Corporation v Longhurst [2001] QPELR 83,
discussed at paragraphs 13 and 14.  There the relevant
authority was the Department of Main Roads.  The point was not
a particular concern to the Court; the proceeding was
determined on another basis.  Quirk DCJ exercised his discretion to decline to declare against the validity of development approvals.  There is no approval of McDonald’s proposal.

This is not a situation like that in Edwards v Douglas
Shire Council [2000] QPELR 375, in which the developer proposed construction of a porte cochere on a public road which hadn't been included in the application. (There is proposed, however, a crossing to provide a trafficable surface for vehicles from the site across lots 200 and 201 to Archerfield Road.)

It's perhaps more like the situation in Woodrow v Miriam
Vale Shire Council [2006] QPEC 48, in which, on the particular
facts, the difficulty which the council had apprehended over
the non-inclusion of land which it owned as somehow being
purloined by the developer for parking went away - the case went off in the result on a different basis.

Reference was made in the reasons to Gibway Pty Ltd v Caboolture Shire Council [1987] 2 Qd R 65, decided upon earlier legislation. That is a Full Court decision in which the headnote describes the ratio in terms of its "being unnecessary to include land proposed to be dedicated as a public road in the rezoning application", which was under consideration there, or in the public advertisements of the application as the land was not "the land to which the
application relates or applies".

That may be a fair summary of the decision, but perusal of the
reasons indicates the importance placed on the sufficiency of
what was revealed to the potentially interested public about
the proposal.  There couldn't be any suggestion here that anything of concern to a person wanting to understand the development application had been overlooked. 

The originating application now before the Court is anterior to the appeal, in the sense that the relief sought relates to how the appeal should proceed.

Mr Hughes, for the appellant/applicant, submits that it's
unnecessary to grant the relief which is sought in the
originating application, founding himself essentially on
Gibway.  I think that he may well have a good argument for that position, but that it's preferable to cover all bases by
granting, in the first instance, the relief sought in the
originating application, then proceeding to determine the
appeal on the basis the parties have worked out.

I can't see that any harm is done by adopting that cautious
approach.  There may be presently unforeseeable, undesirable
implications to be drawn from the Court’s simply accepting
the exclusion or non-inclusion of lots 200 and 201.

The SPA provisions are more generous to developer applicants than the predecessor provisions. Case law established some restrictions on the availability of s 4.1.5A of IPA. Section 440(3) is specific that relief may be granted under the section in relation to a development application that has lapsed as “is not a properly made application”. McDonald’s development application may not have been one. The originating application is premised on application of the law in force at the time it is made. It's understandable (and unobjectionable in my view) that tactical advantages which making an application under the new legislation offer Mr Hughes' client should have been availed of. It is a sympathetic case for the granting of relief of the jurisdiction arisen. No party voiced any attitude other than support.

So, there'll be an order in terms of the initialled draft in both proceedings.