Mirvale Pty Ltd v Brisbane City Council

[2000] QPEC 94

PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Mirvale Pty Ltd v Brisbane City Council & Anor [2000] QPEC 094
PARTIES:	MIRVALE PTY LTD Appellant v BRISBANE CITY COUNCIL Respondent and STRATCLIFF PTY LTD Co-respondent
FILE NO/S:	3416 of 2000
DIVISION:	Planning and Environment Court
PROCEEDING:	Determination of preliminary issues
ORIGINATING COURT:	Brisbane
DELIVERED ON:	26 October 2000
DELIVERED AT:	Brisbane
HEARING DATE:	20 October 2000
JUDGE:	Judge Robin QC
ORDER:	Preliminary issues determined against appellant submitter.
CATCHWORDS:	Integrated Planning Act 1997 s.3.2.1(3)(i) and (ii) – preliminary issue as to validity of a development application for a material change of use (shopping centre) – in accordance with Council and Main Roads wishes to integrate traffic flows associated with the proposed development and a similar one already approved on adjacent land, applicant’s plans showed not only “temporary” ingress across its own land, but also access across the other land – that other land was not identified as the subject of the application – nor was there any written consent of the owner – both development approval packages provided for the granting of reciprocal easements to facilitate shared access to streets – easements would not be granted until the relevant approval was taken up – “Pioneer Concrete” principle held inapplicable – the application neither included the possible future access, nor had any need to.
COUNSEL:	Mr A. Skoien for the appellant Mr A. Chadwick (solicitor) for the respondent Mr J. Haydon for the co-respondent
SOLICITORS:	AB Douglas & Assoc. for the appellant Brisbane City Legal Practice for the respondent Deacon Lawyers for the co-respondent

1. The appellant Mirvale has notified preliminary issues for the court’s determination.  They relate to the validity of the co-respondent Stratcliff’s application to the  respondent Council for a development approval for making a material change of use of land situated at the corner of Moggill Road and Almay Street, Kenmore being Lot 7 on RP 126798 and part of Lot 1 on RP 155479, Parish of Indooroopilly and for a preliminary approval for carrying out of building work, involving the erection and use of a building for a shopping centre on that land.  The underlying appeal is against the Council’s decision made 21 July 2000 to approve the application, subject to conditions. 

1. Lot 7 has been occupied by a service station to date and is where Stratcliff proposes to erect its shopping centre.  Lot 1, which abuts Lot 7 on the north, was included in the application because it was envisaged as providing access to and from the shopping centre (and its parking facilities in particular) to and from Almay Street.  Lot 1 is now owned by Mirvale. 

1. Mirvale also owns Lots 1 to 4 inclusive on RP 68852 (or 68853 – the Bimap is unclear).  Those lots presently contain houses extending from Lot 1 (adjacent to Kenmore State School) to Lot 4 (adjacent to Lot 7 and immediately to the west of it).  Mirvale has successfully made a development application of its own over Lots 1 to 4 fronting Moggill Road and Lot 1 on RP 155479 fronting Almay Street for a Development Permit for Making a Material Change of Use (Shopping Centre and Mini-storage Facility) and for a preliminary approval for carrying out building work.  After negotiation, the Council has issued its development approval package on 19 May 2000.  The rear boundary of Lot 1 on RP 155479 abuts Lot 4 and is effectively an extension of the western boundary of Lot 7.  In Mirvale’s proposed development, the vital contribution of that Lot 1 is to provide access for vehicles to and from Almay Street to the carpark level of a proposed retail building.  So far as Moggill Road is concerned, access consists of an “exit only” which appears to be located on the other Lot 1 and an “entry only” located on Lot 4 close to the boundary with Lot 7. 

1. The Council and the Department of Main Roads (which is an interested authority, given that Moggill Road is a main road) have obviously become aware of both shopping centre proposals and seen the wisdom of integrating traffic flows.  The development approval package granted to Mirvale requires it to grant easements, firstly over the “entry only”, “exit only” and inter-connecting driveway and secondly over the vehicle access to and from Almay Street through Lot 1 in favour of Lot 7.  There is no certainty that such easements will be granted, because there is no certainty that Mirvale will take up its approval and permit.  These considerations may pose a difficulty for Stratcliff in the underlying appeal.  Its own approval and permit provide for no access whatever on the Almay Street frontage of Lot 7.  On the Moggill Road frontage, at the extreme west, adjacent to Lot 4, there is a “temporary access for purpose of D/A as discussed with D.M.R.” which I was told will provide for entering vehicles only.  Those may turn right to park in designated spaces facing Moggill Road or, passing those, turn left around the proposed building to seek parking underneath it.  Whether any vehicles which get on to the site can get off it appears to depend entirely on whether access to Almay Street via Lot 1 is permitted. 

1. For that reason, Lot 1 was identified in Stratcliff’s development application as land subject to it. The application was accompanied by an appropriate consent of the then registered proprietors for the purposes of s.3.2.1(3)(a)(ii) of the Integrated Planning Act 1997.  There was no written consent of Mirvale, or of the then owner of Lot 4 – or, come to that, of Lots 1, 2 and 3 to the west, which might be seen as an extension of the access envisaged through Lot 4.

1. Mirvale says, on a preliminary issue, that such consent(s) had to be obtained as a “mandatory requirement” of Stratcliff’s application, and that sub-section (9) precluded the application’s being accorded any indulgence under sub-section (8). 

1. Section 3.2.1 is:

“(1)Each application  must be made to the assessment manager.  (A single application may be made for both a preliminary approval and a development permit.)

(2)Each application must be made in the approved form.

(3)The approved form –

(a) must contain a mandatory requirements part including a   requirement for –

(i)   an accurate description of the land, the subject  

of the application; and

(ii) the written consent of the owner of the land to

the making of the application; and

(4)Each application must be accompanied by –

(a)if the assessment manager is a local government—the fee set by resolution of the local government ; or

(b)if the assessment manager is another public sector entity – the fee prescribed under a regulation under this or another Act.

(5)If an application is a development application (superseded planning scheme), the application must also identify the superseded planning scheme under which assessment is sought or development is proposed.

(6)An application complying with subsections (1), (2), (3)(a), (4) and (5) is a “properly made application”.

(7)The assessment manager may refuse to receive an application that is not a properly made application.

(8)If the assessment manager receives, and after consideration accepts, an application that is not a properly made application, the application is taken to be a properly made application.

(9)Subsection (8) does not apply to an application unless the application contains the written consent of the owner of any land to which the application applies.”

1. The essential issue for the court is whether Lots 1 to 4 comprise, and whether Lot 4 in particular comprises “land, the subject of the application” or “land to which the application applies”.  Mirvale argues for an affirmative answer, pointing out that the plans accompanying Stratcliff’s application contemplated access to Lot 7 via the “entry only” mentioned above through Lot 4.  The relevant plan clearly shows the configuration of that access to Lot 7, over and above designation of the adjacent access to Moggill Road on Lot 7 itself as “temporary”.  By the time Stratcliff applied, Mirvale had an approval, the terms of which, providing for that “entry only”, were known. 

1. Mirvale says that Stratcliff’s plans clearly show that Lot 4 was part of its application, in the sense of being necessary to the proposed use, although not identified as such in Form 1A, the IDAS Development Application, and that the absence of the owner’s written consent is fatal to the validity of the application.  The case was said to raise a “Pioneer Concrete” point.  See Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485.  Stratcliff’s response, based on Ecovale Pty Ltd v Brisbane City Council (1999) QPELR 189, 191 was that “the application as made was self-sufficient”, having its own access from Moggill Road and incorporating sufficient, from the point of view of validity of the application, in respect of Lot 1 as a means of access to Almay Street. Ecovale was followed in Watpac v Cairns City Council (P&E Appeal No. 3 of 1999, Cairns, 16.11.99). 

1. While accepting that applications may be fatally flawed for failure to include all land the subject of them or written consent of the owner(s) (Martin Lewis v Mareeba Shire Council  (Cairns 4 of 2000, 4.7.00); Michael Edwards v Douglas Shire Council (Cairns 3 of 2000, 19.5.00)), I consider that the Ecovale argument is correct in the circumstances of this case.  It seems to me it was no more than common sense in the circumstances, given the Mirvale approval and the authorities’ attempts to integrate traffic flows of the two developments, to record in the application documents what appeared to represent the likely long term future scenario.  I consider that the use of the expression “temporary” rather than bearing the meaning contended for by Mirvale, of necessarily ceasing to exist after a short time, indicates an access arrangement liable to be replaced by something else, presumably preferable.  For reasons already indicated, that anticipated turn of events may never happen, but an arrangement is proposed which enables Stratcliff’s shopping centre to operate nevertheless. 

1. Mirvale based a further argument on the Department of Main Roads’ letter of 25 May 2000, which is one of the “approved drawings and documents” underlying the conditions in Stratcliff’s  development approval package issued by Brisbane City Council.  The letter says, inter alia:

“The temporary access ... is approved only until such time that reciprocal easement rights have been put in place with the adjoining property, and access to the subject property is to be gained by the common entry only access.  An egress to Moggill Road will not be allowed ... Main Roads reserves the right to reassess this advice should the proposal not proceed along the lines indicated and this advice is waived for two (2) years from the date of this letter.”

1. I regard the main purpose of the letter as being to identify plans.  It may be that the

   
   

   “temporary” access lasts longer than contemplated, but I do not accept the interpretation that there is a two year limit on it.  (Stratcliff’s approval package does include reciprocal easement arrangements rendering the trafficable parts of Stratcliff’s development available for access to and from Mirvale’s development.) 

1. The court notes the sentiment expressed in a letter to the Council of Donald Thallon (Surveys) Pty Ltd of 2 July 1999 in support of the Mirvale application as follows:

“We acknowledge the opportunity for the adjoining service station site to be developed in the future and the desire to minimize footpath crossings in Moggill Road.  We raise no objection to the Council imposing a condition on the approval of this development that provides for the integration of access to this site and the adjoining service station on its redevelopment.”

1. I would add to Stratcliff’s authorities distinguishing Pioneer Concrete a reference to Comiskey v Pine Rivers Shire Council (1996) QPELR 158,1 61, where Senior Judge Skoien said:

“In this case the rezoning could occur and some commercial uses could be carried on within the site without any use of the adjoining land for carparking.  So the use applied for is a single one or as Wilson J. said at p. 518 the application should include as part of the description of the proposed use, all significant incidental uses which are necessarily associated with the proposed use. While the use of extra land for carparking could be seen to be desirable and might lead one day to an application in that behalf, its use now is not necessarily associated with the commercial use of the subject land.”

Compare Perpetual Trustees Australia Limited v Toowoomba City Council (1998) QPELR 461. I regard Stratcliff’s application as self-contained and its bringing in the access from Moggill Road via Lot 4 as being essentially “for information only” and indicating what might happen in the future.

1. Mirvale’s argument was that it had to succeed on the preliminary point either way:  if Lot 4 was included in the application (to the extent of the “entry only” being depicted in the plans), then there is a fatal lack of written consent of any owner; if it was not included, it ought to have been, under the Pioneer Concrete principle.  As to the latter point, it appears to me the contingencies, as already indicated, are such that creation of the access over Lot 4 could not be relied on, or usefully made part of the application. 

1. I think, too, that Stratcliff gains some support from Gibway Pty Ltd v Caboolture Shire Council (1987) 2 Qd. R. 65, in which it was held, upon other legislation, that it was not necessary to include land proposed to be dedicated as a public road in a re-zoning application or in public advertisement thereof, as that land was not “the land to which the application relates or applies.”

1. In all the circumstances, I consider it a misconstruction of the application to say that it included Lot 4.  It did not include Lot 4 and it had no need to.  There was no occasion to furnish a written consent of the owner of Lot 4.

1. The appellant therefore has not succeeded on the preliminary issues in showing that its appeal must succeed.