Mitchell Ogilvie v Brisbane City Council & Fresion Pty Ltd
[2000] QPEC 55
•21 June 2000
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Mitchell Ogilvie v Brisbane City Council & Anor [2000] QPE 055
PARTIES: MITCHELL OGILVIE (MITCHELL OGILVIE MENSWEAR)
Appellant
v
BRISBANE CITY COUNCIL
Respondent
and
FRESION PTY LTD
Co-RespondentFILE NO/S: Appeal 1032/3000 DIVISION: Planning and Environment Court PROCEEDING: Submitter Appeal ORIGINATING COURT: DELIVERED ON: 21 June 2000 DELIVERED AT: Brisbane HEARING DATE: 16 June 2000 JUDGE:
ORDER:CATCHWORDS:
JUDGE ROBIN QC
PRELIMINARY POINTS DETERMINED
DEVELOPMENT APPLICATION - whether piecemeal – whether approval lacked finality – roadworks adjacent to development site and integral to proposed development compromised an established taxi rank – approval conditions proposed construction of a new taxi rank directly underground, Council reserving right of waiver should a new street level location for the taxi rank be found – some details of proposed underground taxi rank left to be determined by Council in association with others – developer specifically excluded taxi rank proposal from its development application.
Transport Operations (Road Use Management) Act 1995 Transport Operations (Road Use Management - Road Rules) Regulation 1999
Integrated Planning Act 1997
Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR
Gibway Pty Ltd v Caboolture Shire Council [1986] QPLR 231
Gibway Pty Ltd v Caboolture Shire Council [1987] 2 Qd R 65
Anka Builders (Gold Coast) Pty Ltd v Maroochy Shire Council (1986) QPLR 436, 465)
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Corporation of the City of Unley v Claude Neon Ltd (1983) 32 SASR 329, 332; 49 LGERA 65, 68
Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGERA 13
McBain v Clifton Shire Council (1994) 2 Qd R 493
Carter v Redland Shire Council (1999) QPELR 102
Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council (1996) 1 Qd R 347
Buderim Private Hospital Pty Ltd v Maroochy Shire Council (1996) QPELR 199
Barakat Properties Pty Ltd v Pine Rivers Shire Council (1994) 85 LGERA 99
Walker v Noosa Shire Council (1983) 2 Qd R 86COUNSEL:
SOLICITORS:
Mr P. Lyons with Mr W. Cochrane for the appellant
Mr M. Rackemann for the respondent
Mr J. Haydon for the co-respondentAnderson & Co for the appellant
Brisbane City Legal Practice for the respondent
Stubbs Barbeler Grant for the co-respondent
The court has to determine preliminary points which may lead to the success of the present submitter appeal lodged against the respondent’s determination to approve a development application by the co-respondent for a development permit for a material change of use and the carrying out of various work (preliminary approvals) in respect of land situated at 149 Adelaide Street, Brisbane. That land, all in the Central Business Zone, is a large site on the southern side of Edward Street extending from Adelaide Street to Queen Street and, in a southerly direction, to (and including) the site of the David Jones department store. The appellant is just one of the appellants in a number of similar appeals who contend that the development application was “piecemeal”, so as to vitiate both it and the approval, and that the approval lacks efficacy because it offends the “finality” principle. No serious attempt was made to argue that the principle or the rule about piecemeal applications famously expounded by Stephen J had no application under the Integrated Planning Act 1997.
The preliminary points focus on a proposal that would see the taxi rank which has operated in the aforementioned part of Edward Street become a subterranean one, a proposal specifically excluded from the development application by the co-respondent, although something envisaged by it and the respondent as likely to be implemented, and, indeed, the subject of some of the approval conditions. One reference among many in the application’s supporting material is in s.8.6 of the Impact Assessment Report:
“Fresion has agreed to construct a taxi rank below the existing footpath on Edward Street. This rank does not form part of the Queen Street Central Development for which approval is sought.”
The appellants’ chief concerns relate to the impact of the approval in the next block of Edward Street to the east, where a good part of the southern kerbside lane will be fenced off and disappear, to accommodate a ramp along which vehicles emerging from underground may rejoin Edward Street. The appellants (or some of them) consider this will impact adversely on their premises and their amenity. Such matters are not considered here, but are for the main appeal, on full evidence . In this jurisdiction, however, submitter appellants are free to rely on any factor which may vitiate an unwelcome approval.
Whether the provision of parking underneath the co-respondent’s proposed development is its idea, as a means of attracting customers, or whether it is the respondent’s idea, the plans envisage a multi level underground carpark with some 600 places. Egress will be as indicated above, ingress a block away adjoining the development site, by a descending ramp falling from west to east, involving closure of the kerbside lane for the necessary distance. Where the kerbside lane becomes available to traffic at ground level again, it is presently contemplated there will be a taxi ramp capable of accommodating two vehicles, which disabled patrons may use. The principal rank, it is contemplated, will go underground, taxis (of which six could be accommodated) traversing a direct path between the down ramp and the up ramp.
The above does not represent the only use contemplated of space below Edward Street. The ramps will also provide ingress and egress for the underground parking. Vehicles wishing to access it will veer left before the taxi pick up area down a tunnel which will swing back to the right at the parking levels, some distance underground. At conventional basement level, the development will have a food court and a supermarket and other commercial uses and access (running along the line of Queen Street) to the taxi rank. Would-be taxi patrons can access the basement level by stairs roughly in the middle of the proposed development (there will be some alternative access, such as lifts) and will have no option but to walk through the food court area. There is another minor access by a narrow staircase about the middle of the Edward Street block; this, it seems, will be the only access to the taxi rank for pedestrians at times outside business hours when the access past the food court may be blocked off. Immediately below this basement level is a “service” level, incorporating loading docks, and the like. There will be laneway access to and from Adelaide Street for this level. Below it, the remaining underground levels will be for customer parking.
Conditions attached by the respondent to its approval include the following:
CONDITIONS
GUIDELINES FOR APPLICANTS ACTIONS TIMES TO COMPLETE ACTIONS “3.(a) Submit a detailed design of the proposed structure over the stairs within the Edward Street footpath including the proposed treatment of the tunnel exhaust system. The detailed design is to be approved by the Team Leader, Development Assessment Team Central.
This condition is required unless there is approval from the Team Leader, Development Assessment Team Central for an alternative taxi rank or taxi ranks located elsewhere in the city. If there is approval for an alternative taxi rank or taxi ranks located elsewhere in the city, then the space occupied by the stairs is to be paved in accordance with condition 2 of this approval package.
(b) Construct the structures in accordance with the approved plans.
(a) Prior to the commencement of building work
(b) Prior to the commencement of the use
For any enquiries about this condition, please contact the Assessment Manager. 5. 5. Provide a lift within the Edward Street shopfront opposite the proposed stair within the Edward Street road reserve or in an alternative location approved by the Team Leader, Development Assessment Team Central, to provide equitable access to the underground taxi rank. The lift is to be freely available 24 hours a day.
This condition is required unless there is approval from the Team Leader, Development Assessment Team Central, for an alternative taxi rank or taxi ranks located elsewhere in the city.
Prior to the commencement of the use and to be maintained This condition is required to ensure 24 hour equitable access to the underground taxi rank.
For any enquiries about this condition, please contact the Assessment Manager.
6. Design, install and maintain taxi rank infra-structure including queue management facilities in accordance with a detailed strategy approved by the Brisbane City Council, Queensland Transport and Taxi Council of Queensland. This condition is required unless there is approval from the Team Leader, Development Assessment Team Central for an alternative taxi rank or taxi ranks located elsewhere in the city. If there is approval for an alternative taxi rank or taxi ranks located elsewhere in the city, then the taxi rank infrastructure is not required to be installed. Prior to the commencement of the use and to be maintained For any enquiries about this condition, please contact the Engineering Assessment Officer 3 Central. 7. Provide 24 hour security cameras appropriately placed within the taxi queuing area to be linked to the City Beat Police Station. This condition is required unless there is approval from the Team Leader, Development Assessment Team Central for an alternative taxi rank or taxi ranks located elsewhere in the city.
Prior to the commencement of the use This condition is imposed to ensure adequate surveillance is provided for passengers and taxi drivers.
For any enquiries about this condition, please contact the Assessment Manager.
30(a) Construct the following in Edward Street external to the site:
º Relocated kerb and channel with provision for the following;
- maintaining a minimum pavement width of 9.5 metres between kerbs for 3 through traffic lanes;
- 2 spaces for taxis for disabled passengers and 1 car parking space for police vehicles between Adelaide Street and Queen Street;
- a loading zone between Queen and Elizabeth Streets;
º an underground taxi rank, including a breakdown by-pass and car park access ramps between Adelaide and Elizabeth Streets. The underground rank to accommodate a minimum queue of 6 vehicles and capacity for a maximum of 8;
º modify the Queen/Edward Street intersection to provide 3 through lanes and a pedestrian scramble crossing;
º proposed cross sections are to be in accordance with the Beard and Holland Plan M1051-63; and
º the pavement in the traffic lane on the approach to the entry ramp is to be surfaced in a material of contrasting colour and texture and appropriately delineated.
(b) Locate and design signs and structures, including barriers, between the access and egress ramps and through carriageway in the road reserve in accordance with relevant standards to safely and clearly provide for through and accessing vehicles and pedestrians.
(c) Work required by this condition is to be carried out in accordance with an approved detailed design (refer condition 34).
The taxi facilities mentioned in this condition are required unless there is approval from the Team Leader, Development Assessment Team Central, for an alternative taxi rank or taxi ranks located elsewhere in the city, then the underground taxi facilities and the above ground disabled facilities are not required to be constructed.
Prior to the commencement of the use This condition requires works to be undertaken in the road reserve. The intention of the condition is to ensure that the adjoining roads are designed and constructed to a standard suited to the demands created by the approved development.
For any enquiries about this condition, please contact the Engineering Assessment Officer 3 Central.
31. Construct a kerb build out in Edward Street on the approach to the car parking entry ramp in accordance with an approved detail design in the event Council monitoring within 12 months of commencement of usage reveals a safety or operational deficiency with the pavement treatment mentioned in the above condition. ” Within three months of notification by Council to construct For any enquiries about this condition, please contact the Engineering Assessment Officer 3 Central.
An affidavit of Mr Nichols is as follows:
“1.I am engaged by Fresion Pty Ltd (the Co-Respondent in the seven Appeals by Submitters and the original Applicant to the Council) as the Project Manager for Queen Street Central (the name applied to the proposed development the subject of these Appeals).
2.The underground taxi rank is not part of the application for development by Fresion Pty Ltd.
3.Before the application was made the Brisbane City Council indicated to Fresion Pty Ltd and its Consultants that it wanted the provision of an underground taxi rank as a relocation of the current Edward Street taxi rank. The plans show the Council proposed underground taxi rank wholly within road reserve of Edward Street. The Edward Street road reserve is not zoned land under the Planning Scheme.
4.I have treated Condition 6 dealing with the taxi rank as works external to the development proposed by Fresion Pty. Ltd.
5.Now produced and shown to me and marked ‘CWN1’ is a copy of the joint recommendation to the Urban Planning Committee of the Respondent ...
6. Condition 21 refers to a proposed Deed in the following
terms:-
‘Enter into a deed of agreement with the Brisbane City Council, to the satisfaction of the Team Leader, Development Assessment Team Central, regarding the maintenance and management of the entry & exit ramps, vehicular tunnel and if necessary the stairs within the Edward Street road reserve.’
No Deed has been signed by the Co-Respondent in respect of the Council proposed underground taxi rank. I am unaware of any draft document or Deed which deals with the management and maintenance of the Council proposed underground taxi rank.”
The exhibit includes the following:
“Council and State Government officers have been involved in negotiations over this proposal, and earlier versions not involving the David Jones site, since early 1997.
Prior to formal lodgment of this application, a number of studies were undertaken to assess the impact of the proposal, particularly with regard to parking and traffic matters. For example, Council commissioned a study by an independent traffic consultant to investigate the impact of an earlier proposal to build 1500 car parking spaces. The study concluded that the traffic flow generated by a car park of 600 would be acceptable.
In addition, various options for vehicular access to the site were explored. Edward Street between Adelaide and Queen Streets is a very highly used pedestrian thoroughfare. In considering options for vehicular access to the site, it was considered essential that conflict between pedestrians and vehicles be minimised. As such, the option of using a kerb-side lane for access was supported.
In terms of the choice of location for the access and exit ramps, a number of options were explored in detail. Among the factors taken into account were: the impacts on long term traffic operations; future flexibility; bus and taxi operations; exit route choices; pedestrian amenity; and impact on loading zones.
Ultimately both council and external traffic engineers have concluded that the proposed locations for the ramps are preferable with respect to traffic operations due to their minimal impact on bus and taxi operations and loading zones as well as to future planning options for the circulation of traffic in this part of the city.”
The application was lodged on 26 August 1999. The form of application identifies the site by way of real property descriptions of the private land and goes on:
“and Edward Street between Adelaide Street and Elizabeth Street (parts of Adelaide Street and The Queen Street Mall are then referred to) ...”
The Form 1A IDAS development application gives as a description of the proposal:
“shopping centre, carpark & development & works associated with adjoining a heritage place ... (adding a reference to the impact assessment report).”
It is convenient to set out Ground 5A, recently added to the Notice of Appeal by leave, and setting out the issues for determination now:
“(a) The application was defective because it failed to seek approval for a taxi rank below ground level, even though the applicant proposed to carry out that development;
(b) The advertising of the application was defective because none of the public notices referred to the proposal to develop a taxi rank below ground level in Edward Street;
(c) Accordingly, the respondent lacked the power to approve the co-respondent’s application;
(d) In approving the application, the respondent imposed a condition relating to the taxi rank, as follows:
‘6. ...’
(e) In view of condition 6, the Council’s approval offends the principle of finality, because:
(i) the details of the taxi rank facility have been deferred for approval by the respondent, Queensland Transport and the Taxi Council of Queensland;
(ii) alternatively, the respondent delegated authority to the Team Leader, Development Assessment Team Central, to approve an alternative taxi rank or ranks;
(f) Condition 6 is integral to the approval and cannot be severed from it;
(g) The location of the exit ramp (for example, as shown on drawing M1051-A in technical report 4 in the co-respondent’s impact assessment report dated August 1999) was based on the co-respondent’s proposal to develop the taxi rank below ground level.”
The last two paragraphs quoted from Exhibit CWN1 were said on behalf of the respondent and co-respondent to refute the appellants’ contention that it is provision for the taxi queue that dictates that the egress should be placed in front of their premises. In my opinion, that contention cannot be rejected. There is no evidence to suggest that if the taxi rank were omitted egress for vehicles parked on the site could not be located on or adjacent to it.
The objection to the development application that it is piecemeal is based on Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485, in particular the opinion of Stephen J at 504, in reference to Judge Given’s stipulating as a condition of consent to use part of the site as a quarry that the use ‘should not begin until the proposed access route had been constructed’:
“What was, perhaps, not recognized was that the need for this condition arose because the applicant had failed to include in its application the whole of its intended use and instead proposed to make application piecemeal, first securing consent to quarrying and processing and only later applying for consent to use other land for its access road.
To sever an application in this fashion is likely to impede its proper consideration. Only if it is presented as a whole and at the one time is there likely to be full opportunity for the tribunal and for objectors properly to assess it in all its aspects. The present case demonstrates the consequence of piecemeal application. Although the application before Judge Given was in terms confined to the quarry site, both the proposed access route to the south and the general topic of transportation of quarry products was necessarily much to the fore. His Honour’s judgment in consequence gave careful consideration to all aspects of the quarry operation and, in the outcome, strict conditions were imposed concerning amounts of quarry products which might be transported from the site and the times of day during which this might be done. All this would tend to make it difficult for the council or, for that matter, the Local Government Court, to treat as other than somewhat of a formality any subsequent application for consent to the proposed access route. To a degree at least, the outcome of that subsequent application would have been pre-judged, and this despite the fact that the consent given to the first application was conditional upon consent being granted to the later access route application.
Such piecemeal applications are likely to place planning authorities or review tribunals in somewhat of a dilemma. The first application may well require assessment of the entire proposal if it is properly to be disposed of; yet the second application will still remain to be dealt with on its merits as an independent matter. When it comes to be heard there will be strongly felt pressures to avoid what might seem to be conflicting outcomes if, the first application having been granted, the second were to be refused. Any detailed examination in the first application, whether by the tribunal or by objectors, of matters which will have to be dealt with in the second is likely to be met with the objection that they are more proper for consideration when the second application is heard; but when that second application is heard it is likely to be much dominated by the outcome of the first.
Quite apart from such adverse practical consequences as may result from thus splitting into two or more applications the one proposal to use land for a particular purpose, I do not regard Brisbane’s town planning measures as permitting such a course.”
Pioneer Concrete is authority for the proposition set out in the headnote:
“Held ...that an applicant under the Act, and the ordinances made under it, for consent to use land for a particular purpose must apply at the outset for the entire proposed use. Where a change of use is contemplated, the proposed use must be stated in appropriate detail in one application and all the land involved in the use must be the subject of the application. Hence the application was defective in failing to include the route of a proposed access road: it did not include all the land to which it related or applied ...”
Stephen J said at 506:
“The consequence of the applicant having failed, in its application, to specify the whole of the land to which that application related or applied, instead restricting its application to part only of the subject land, must be to have deprived the Local Government Court of jurisdiction to determine the application. Judge Given rejected such an objection to jurisdiction because he regarded the nomination by the applicant of the site of the quarry and processing plant as the subject land as, in effect, conclusive. What was proposed to be done off the subject land as thus identified was an ‘external activity’ which could not, he thought, be caught by the extended definition of ‘use’. However, once ‘use’ is perceived as determinative of ‘land’, rather than vice versa, the application may be seen to be defective and the Local Government Court to be without jurisdiction. The Full Court of The Supreme Court was correct in so holding.”
This is not a case in which there was an omission of land from the application – it included Edward Street, which is undoubtedly “land” and indeed “premises” in respect of which “a material change of use” may be made in terms of the Integrated Planning Act: see s 1.3.2(e), then (b) in the definition of “premises” in Schedule 10 and the definition of “land” in that schedule, especially, in the present context, (c). The definition of “material change of use” is in s.1.3.5.
Mr Haydon, for the co-respondent, relied on provisions of the Brisbane Town Planning Scheme, which is a Transitional Planning Scheme for purposes of the IPA. The Scheme does not define “taxi rank” and evinces no interest in such a use; further, the scheme does not apply to a road reserve such as Edward Street, which is not zoned, and could not (at least on its own) be the subject of a town planning application under the law applicable on 26 August 1999. A “site” as defined in s. 30.3 of the planning scheme (p. 30-179), and is limited to “allotments” or defined at p.30.175, in a way that excludes a road like Edward Street. Pioneer Concrete, as he said, dealt with private land. Mr Rackemann, for the respondent, submitted that what is proposed for Edward Street occurs entirely within the road and accordingly is not “assessable development” at all and need not be the subject of any application to his client. He says that public access to and use of Edward Street will not change, that the ramps and intervening taxi rank may be traversed by anyone just as the kerbside lane of Edward Street may be at the moment. While this may be correct technically, it seems to me highly artificial in the present situation. The taxi rank situation has been left very much up in the air (perhaps an unfortunate choice of words) by the approval and conditions. It may be only a few months before the Transitional Planning Scheme is replaced by the draft plan for Brisbane. When that happens, the co-respondent may well have to apply in respect of the new use of underground taxi rank and the undesirable consequences of a piecemeal application will be experienced. In any event, and more fundamentally, not only did the application identify the relevant part of Edward Street as the site, whatever may happen to the taxi rank, use of the ramps and tunnels leading to and from the parking levels in the development is an integral part of the co-respondent’s proposal. Appreciating that there is uncertainty about whether the new underground taxi rank will ultimately be required, I think it undesirable to exclude from the application that taxi rank. That exclusion risks vitiating the whole application. It is noteworthy too, that, with the exception of the small stairway, access to and from that taxi rank will only be possible by travelling through the privately owned site, which thus acquires an unusual underground access.
Mr Haydon presented the following argument for the co-respondent:
“6. In Gibway Pty Ltd v Caboolture Shire Council [1986] QPLR 231 Judge Byth held that it was not necessary to include in an application for rezoning land proposed to be dedicated as road. The Council had approved the rezoning of a metes and bounds description of land for which public notice had been given subject to a condition that land outside the metes and bounds description be dedicated as public road. The decision in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 at 502 was distinguished because in Pioneer other parts of private land were intended to be used for part of the quarrying operation use. The future road land (shown on the plans with the Application for rezoning in Gibway Pty Ltd) did not require rezoning. That matter went on Appeal to the Full Court. In Gibway Pty Ltd v Caboolture Shire Council [1987] 2 Qd R 65 the Judgment of Thomas J (with whom Andrews CJ and Ryan J both agreed) sets out the description of the land in respect of which the Application was made (page 66 at lines 15 to 36). One of the conditions imposed by the Council in its proposal to approve the rezoning was the construction of the new road shown as Apanina Avenue in accordance with the Council’s standard requirements (page 67 at lines 8 to 11). At page 67 lines 37 to 41 Thomas J said as follows:-
‘There is also a considerable distinction between a private access road to be used by the Applicant and its servants for ancillary purposes relating to a consent use and the dedication of a public road which will be used by the public for all lawful purposes for which a public road may be used.’
In the subject Appeals there is a considerable distinction between development on private land and the development of a taxi rank on an existing dedicated public road.
7. Thomas J also said in Gibway Pty Ltd v Caboolture Shire Council at page 69 lines 18 to 34 that the buffer zone question raised in Pioneer was not something for which consent was sought by the Appellant but was imposed as a condition by the Court. At page 69 line 44 to page 70 line 12 Thomas J said as follows:-
‘In such a case the proper course is to show the proposed road or roads in the application (as the present application does in the plan to which the application refers) and apply for rezoning of the precise areas of land which the Applicant wishes to be rezoned (as the present application does). I can see no error in what the present Applicant did and fail to see how anyone could be misled by such a procedure.
As might have been expected the Council imposed as a condition of approving the rezoning that such a road be constructed. The opening of such a road is governed by s.34 of the Local Government Act which envisages a quiet separate procedure from rezoning applications or applications under s. 33. There are no rights of objection to the former procedure. After due compliance, such land is vested in the Crown (s. 369 of the Land Act 1962-1985), and as a public road is not subject to zoning, it is simply taken out of the zoned are of the Town Planning Scheme.’
It is also said by Thomas J at page 69 lines 35 to 37 that that case was not one where the form of application or advertisement might mislead potential objectors or give them an erroneous view of the rezoning application.
8. The provision of the Council proposed underground taxi rank are works external to the development proposed by the Co-Respondent. It is in the same category as other roadworks like constructing a traffic island. The proposed underground taxi rank is wholly within the road reserve of Edward Street and Edward Street is not zoned under the Planning Scheme (paragraph 3 in the Affidavit of Mr Nichols).”
In my opinion, the present case is much closer to Pioneer Concrete than to Gibway. While there may be situations in which the dedication of a new public road may cause concerns, for example by prejudicing the amenity of a locality (see Anka Builders (Gold Coast) Pty Ltd v Maroochy Shire Council (1986) QPLR 436, 465), I would expect that to be encountered only in unusual circumstances. What is presently under consideration for the future of the established Edward Street taxi rank would very likely raise concerns in many quarters and attract submissions.
It should not be overlooked that Gibway was about an application for rezoning, and that there was no need for the road area to be rezoned. No rezoning is required by the co-respondent’s proposal. But there is proposed a “material change of use”, in my opinion, whether in the ordinary or in the defined meaning of that expression, so far as what may happen in Edward Street is concerned. As it happens, the respondent has the management of Edward Street under the Transport Operations (Road Use Management) Act 1995 and the Transport Operations (Road Use Management - Road Rules) Regulation 1999. The ramps and tunnels are integral to the proposal. There is presently a proposal (deliberately excluded from the application) for a taxi rank in the area linking the ramps. There is obviously room for the view to be taken that, if implemented, this proposal would adversely impact on an existing public facility. The objections of a couple of the appellants refer to it, demonstrating that anyone who had occasion to go beyond the advertisements and the Form 1A and “Form 4” (here reflected in Form “B1 Material Change of Use” at page 17 of the “book of documents” Exhibit 1) would be alerted to the proposal. However, in my opinion, there is much about the overall documentation which would dissuade potential submitters – why object or put in a submission against something explicitly stated not to be part of the application? There is an implication that there may come an opportunity later. It is not made clear that the ground level taxi rank in the familiar location will be lost to the ordinary public, reduced to a limited one for disabled taxi patrons.
It is worth setting out the terms of the public notice, which tends to draw attention to matters which may be of less concern to the citizenry, such as diversion of a stormwater drain:
“Proposal: Application for a Material Change of Use (Development Permit), Carrying out Drainage Work (Preliminary Approval), Carrying out Building Work (Preliminary Approval), Carrying out Operational Work (Preliminary Approval). The proposed development is for a ‘shopping centre’, ‘carpark’ and all relevant works and development in association with a Heritage Place in accordance with Section 22 of the Brisbane Town Plan.
The land the subject of the application includes the real property descriptions and parts of roads set out below. The roads have been included because of work associated with the proposed development, including ingress and egress and stormwater drainage, some of which are required to be carried out within the nominated road reserves. The proposal and the land the subject of the application are described and illustrated in the IDAS development application; the Impact Assessment Report; the drawings, elevations and sections; the schematic drawings depicting a proposed stormwater drain diversion all of which are available at the Brisbane Administration Centre at the location and for the period described below”.
The co-respondent relied on Anka Builders (Gold Coast) Pty Ltd v Maroochy Shire Council (1986) QPLR 436 to establish the proposition that where (as was contended had happened here) the Council wants to impose conditions external to the development site, that fact does not make the development application defective or invalid. Row DCJ said at 446:-
“On the material I am satisfied that the proposed Evans Street link at no time was part of the land to which the application by the Respondent by Election related or applied but was a condition proposed to be imposed by the Respondent ...
It was further submitted on behalf of Butts that the Evans Street link constituted an amendment of the original application and was of such consequence that readvertisement was required it being an amendment not of a minor nature ... In view of the findings set out above I find that the Evans Street link was not an amendment of the application and at no time formed any part of the application by the Respondent by Election. In such circumstances readvertisement was not required. ...
Further I find that the proposed condition had not been agreed to by the Respondent by Election prior to the Respondent reaching its decision on the application. In such circumstances it was not part of the application but was a condition proposed to be imposed as a result of the Respondent on the said application.”
As it happened, his Honour allowed the objector appeal on the basis that there was no need for the rezoning of further land Central Business Zone, that such a rezoning would adversely affect the balance of zones in the locality and result in a fragmentation rather than a consolidation of the central business district.
Here, the considerations related to the lack of “finality” in the Council’s approval are closely bound up with those suggesting the application (by reason of the exclusion of the taxi rank aspect) is “piecemeal”. While the design of the proposal which the Council and developer have been working on (since before the application was lodged) is to relocate the doomed taxi rank, by putting it underground, there are prospects that another solution may be found, by relocating the Edward Street taxi rank as a ground level facility somewhere else in the City. Although people become accustomed to taxi ranks in particular locations, in principle, there is no reason why a taxi rank should not be done away with, or located somewhere else. If the facility is lost or located inconveniently, there may readily be seen to be an adverse impact on relevant segments of the taxi industry and its customers. The conditions set by the Council deliberately leave open the relocation possibility, and offer the co-respondent the prospect of relief from the taxi rank conditions if it comes about. The result is that no-one can say what the final impact of the proposed development on and under Edward Street will be, in particular, what will happen to the taxi rank. Matters whose importance to the general public is obvious are left for later decision. This offends the “finality principle”. The leading authority is probably Mison v Randwick Municipal Council (1991) 23 NSWLR 734, whose headnote is:
“Held: (1) (By Priestley JA with whom Clarke JA and Meagher JA agreed) If a condition imposed upon a purported consent to a particular development application pursuant to s 91(1) of the Environmental Planning and Assessment Act 1979 has the effect of significantly altering the development in respect of which the consent is made or if the effect of an imposed condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which application was made then the purported consent is not a consent to the application.
(By Clarke JA with whom Meagher JA agreed) If a purported consent leaves for later decision an important aspect of the development which would alter the proposed development in a fundamental respect, the consent cannot finally determine the development application.
(2) Accordingly, a consent to permit development of residential land subject to a condition, inter alia, that the overall height of a dwelllinghouse be 'reduced to the satisfaction of the Council’s Chief Town Planner’, was not a consent within s 91(1)(a) of the Environmental Planning and Assessment Act 1979.”
At 739, Clarke JA (Meagher JA agreeing) quoted with approval the following passage from Corporation of the City of Unley v Claude Neon Ltd (1983) 32 SASR 329, 332; 49 LGERA 65, 68:
“For this purpose, it is essential to bear in mind that the granting of a consent is an act in law that is final in the disposition of the application: the consent must be either refused, or granted unconditionally, or granted subject to conditions. A condition which imparts to a consent a quality in virtue of which it ceases to be final is not one, in my judgment, that falls within the structure of the Act. A condition so annexed ought to be directed, and directed only, to circumscribing, with reasonable particularity, the acts of land use to which the authority or tribunal has given its consent, which would otherwise be unlimited in its generality and effect.”
Examples abound earlier and later of application of the principle. In Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGERA 13:
“A development consent for a convenience food store with self-service petrol facilities open twenty-four hours a day included a condition that ‘Council reserves the right to restrict the hours of operation should any nuisance occur’.
Held: (1) The condition was void for lack of finality.
...
(2) As the issue of hours of operation of the development and whether they should be restricted was fundamental and went to the very root of the development consent the condition was inseverable and the whole development consent was void.”
In McBain v Clifton Shire Council (1994) 2 Qd R 493:
“The first respondent’s approval of an application to use a property as a piggery was relevantly subject to the following conditions:
“PIGGERY CAPACITY
3)This consent permits a maximum resident pig population of 8000 sows and their progeny with the total pig population not to exceed 80000 at any one time on the basis of pig numbers may exceed this limit by a maximum of 5 per cent to accommodate variations in breeding programs ....
DEVELOPMENT STAGING
4)(1) Stocking of the piggery shall only be undertaken in staged
increments beginning with a maximum of 20000 pigs (2000 sows and their progeny) and increasing in increments of 20000 pigs up to the maximum number of pigs allowed.
(2) The first and each subsequent incremental increase shall only be undertaken upon the written approval of the Local Authority who in turn will act upon advice from the Monitoring Review Committee, that the current and proposed stock numbers represent an environmentally sustainable operation in accordance with an approved Environmental Management Plan prepared in accordance with the conditions of this consent.”
Held:
(1)That the approval provided for future decisions as to whether the current and proposed operation of the piggery was environmentally sustainable, each of which could fundamentally alter its development and would in turn decide its permissible size. In so far as the approval purported to postpone such decisions from the issue of the conditional approval until unspecified future dates if offended the finality principle and was therefore impermissible.
(2)That the impermissible condition of the approval could be severed, so that it operated as a valid approval of a piggery of 20,000 pigs.”
The court noted at 496 that:
“Decisions ... to be made by Council in accordance with the statutory process cannot be delegated or deferred for decision outside that process. However, all parties accepted that there is a wider ‘principle of finality’ ...
Carter v Redland Shire Council (1999) QPELR 88 is an indication that the principle applies in appropriate circumstances, even where something quite minor, such as external finish of a building, is left for later decision.
The finality principle was recognized by the Court of Appeal, but not applied in the end in Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council (1996) 1 Qd R 347. McPherson JA and Ambrose J said at 352-53:
“As a general proposition it may be accepted that, in deciding to approve, whether with or without conditions, an application of the present kind, a local authority is bound to dispose of the application fully and finally, and that it may not defer its decision on an essential matter, or delegate its power to do so to some other person or body for determination. See Randwick Municipal Council v. Pacific-Seven Pty Ltd (1989) 69 L.G.R.A. 13 ...
On behalf of the appellant, Mr Gore Q.C. conceded that the precise form of the easement was, as he called it, only a small point. His major argument was that condition 30 left the building restriction line to future determination. It is true that the precise location of that line was not fixed at the time the appeal was disposed of below. But, properly analyzsed, the case bears no resemblance to Leichhardt Municipal Council v. The Minister (1992) 77 L.G.R.A. 64, or to Mison v. Randwick Municipal Council (1991) 23 N.S.W.L.R. 734, on which reliance was placed by the appellant. In Leichhardt, the relevant condition purported to require that the applicant commission an expert report and recommendation on noise impact, which was to be submitted to the municipal town planner for approval, and that the building application incorporate such of the recommendations as were approved by that planner. In Mison, approval for a two-storey dwelling house was given subject to a condition that the overall height of the dwelling house should be reduced to the satisfaction of the Council’s chief planner. In both cases the approval was held to be invalid in that it did not finally resolve the application but left it, or an essential element of it, to be decided on a later occasion by another person.
The subject condition is not open to the same criticism. The precise location on the ground, or on a plan of the land, of the building restriction line is, it may be acknowledged, left to be fixed in the future; but that is so only in the sense that its position has not yet been measured in situ or designated by metes and bounds. The objective criteria necessary to arrive at such a designation are nevertheless now fully identified in condition 30. The appellant accepts that the limits of the specified noise levels are scientifically ascertainable, and that the building restriction line must correspond to them. The case is therefore not one in which the decision of an essential matter is deferred to a future occasion, or delegated to another person. On the contrary, it is one in which clear objective standards are used ‘which are capable of producing a result about which every man must agree if he knows the facts and figures and has made his calculations correctly’: King Gee Clothing Co. Pty Ltd v. The Commonwealth (1945) 71 C.L.R. 184, 198, per Dixon C.J.”
An argument might be open that everything required has been adequately defined, and that no concern need be felt that the Team Leader may relieve the co-respondent from the necessity to comply with a clearly expressed condition. However, the first sentence of Condition 6 plainly shows that what is to be designed and installed awaits negotiations by the respondent with others. Even so, submitted Mr Rackemann, for the respondent, the court ought to follow the lead of Judge Quirk in Buderim Private Hospital Pty Ltd v Maroochy Shire Council (1996) QPELR 199, and adopt the approach that whether or not the Council approval offended the finality principle, an objector or submitter appeal such as the present requires the underlying application to be determined de novo on whatever evidence is presented – the court being in a position to make appropriate judgments in the light of expert and other evidence presented and, in its decision, respect the finality principle. His Honour refused to make the ruling sought, stating it was too soon to make any judgment on the matters raised. He identified McBainv Clifton Shire Council as distinguishable because “there was, in that case, no suggestion other than that the parties were content to have the relevant point considered and decided by the court as it was.” This was not the position before his Honour, but it is the position here. Indeed, when directions were given by me permitting the addition of paragraph 5A to the Notice of Appeal and for the determination of the matters raised as preliminary issues, it seemed to be the co-respondent’s solicitor, Mr Barbeler, who displayed most keenness among the parties’ representatives to ascertain as early as possible whether there was point in preparing for a full hearing of these appeals in the July pool.
Mr Rackemann contended that Walker v Noosa Shire Council (1983) 2 Qd R 86 constituted an example of the permissibility of an approval of a town planning nature not lacking finality simply because a further approval by the Council might be required for a development to go ahead. Mr Lyons, for the appellants, responded that the case was one in which the subsequent approval was one to be given by the Council in a capacity other that its town planning one. Technically, that may be so here, the Council acting in a separate capacity when it manages Edward Street. However, issues of the impacts of a proposed development outside the site itself are always part and parcel of planning determinations, and particularly impacts on adjacent streets, and facilities in them such as taxi ranks. Identification of and establishing ways of managing these impacts should occur when a development application is made, in a single assessment. Thomas J at page 90 suggested the outstanding approval(s) could be allowed for by an appropriate condition, but added:
“It may be more convenient and practical that the final framing of such conditions be left until the other consents are obtained”.
I take his Honour to be referring to conditions generally.
In my opinion, a useful analogy emerges from Judge White’s approach in Edwards & Jenner v Douglas Shire Council (1999) QPELR 335, 338 to the omission from part of the public notification of aspects of a developer’s proposal:
“Different considerations apply to the letters sent to adjoining owners. In my view the information is misleading, although I do not suggest deliberately so. It makes no mention at all of the shops, restaurant and bar. By telling the neighbours that all existing structures are to be demolished they would have the impression that what was proposed was basically a large block of holiday units. In my view, the seven shops, restaurant and bar are a very significant part of the proposal and could have significant implications in terms of impact upon neighbouring properties and residents because they are likely to substantially increase the number of persons going to an from the site and being on the premises late at night. This may also have traffic implications.
However, the Co-respondent and Respondent submit that as a matter of construction of the Act they were not obliged to give public notice of that part of the proposed development on the application. Subsection 3.4.2(1) provides:
‘The notification stage applies only if an application requires impact assessment’.
It is submitted (correctly) that an application for the shops, restaurant and bar does not require impact assessment. It was suggested to me that the First Co-respondent could have simply applied for the accommodation units (tourists) part of the proposal, received its permit, and a few months later made another application for shops, restaurant and bar and it would not have been required to give public notice of the latter. I am prepared to accept that this is so but do not make a final determination on the point. However, in my view, it would be speculative to assume that a permit would have been granted in respect of the building without the Council being fully informed of the other uses to be carried out in the building. This application relates to a development involving a very substantial building. I would have thought that a different design may have been required if the application for impact assessment and application for code assessment were to be made as two distinctly separate processes. Whatever the alternative courses open to the Co-respondent might have been the fact is that this is a single application relating to a single parcel of land involving a single development. The use proposed for a major part of that development required impact assessment. In my view it was relevant for the Council in making its impact assessment to consider the relationship between that part of the development which required impact assessment and that part which required code assessment. Therefore, this application must be characterised as one which required impact assessment. I therefore hold that on the proper construction of subs.3.4.2(1) that Pt 4 – Notification State of the Integrated Planning Act applied to the whole of this application. In my view the failure to inform the adjoining owners of the proposal to construct a building intended to house seven shops and a restaurant and bar was a material omission. ...”
I am not at all attracted by the argument that the underground taxi rank in Edward Street may be ignored in present circumstances because it may not, itself, be “assessable development.”
Mr Lyons appears to be correct in his submission that the asserted effect of Anka Builders requires qualification, so far as it might be thought to exempt the co-respondent from responsibility for not having applied for relevant matters required by a condition imposed by the Council in light of Barakat Properties Pty Ltd v Pine Rivers Shire Council (1994) 85 LGERA 99. This case concerned a condition which in effect varied an application that had contemplated access to a development site via identified streets; the variation called for access (not only to the development but also to other land) via a street where a gentleman who would have objected had he anticipated such a variation resided. The Court of Appeal said at 102:
“It seems obvious that a local authority can have no greater power to approve, or require, modification of an application when no ‘application ... seeking ... modification’ has been made. Its power to impose conditions on an approval does not entitle it to impose a condition that an application be modified in the manner which the local authority could not approve if an application seeking modification had been made.
If justification for this view be needed, it can be found in the doctrine that an application, in this case, a combined application for re-zoning and subdivisional approval, cannot be approved subject to conditions which would result in a materially different proposal.”
Thus, the co-respondent is not entitled to be exempted from the consequences of having failed to include some material change of use which becomes inseparable from its proposal on the basis that, as a matter of form or history, the Council may be responsible for introducing that aspect by a condition set by it. I do not suggest there would not be cases where such an exemption might apply. The present is not one. The underground taxi rank concept obviously preceded the lodging of the development application.
It was Mr Rackemann who suggested that, if the co-respondent’s application were to be ruled deficient, it might persuade the court to act under s.4.1.52(2)(b) on the basis that the necessary change to the application on which the decision being appealed was made “is only a minor change”. Mr Haydon made it clear to the court that at this stage his client was not invoking that provision.
In the court’s view, the application correctly identified Edward Street as being (along with the private land) the subject of it. Whatever the status of Edward Street from the point of view of its having a zoning within, or being controlled in any way by the planning scheme for Brisbane, the ramps and tunnel access proposed are integral to the proposal and were correctly included in the application. The impacts of the ramps on users of Edward Street, including users of the present taxi rank, are undeniable, and appear to be significant. To excise from the application the proposal for a new taxi rank underneath Edward Street is artificial in the extreme. A practical reason for the excision may have been the hope that some nearby street location in the City would be found to accommodate the present ground level Edward Street rank. Whether that existing facility moves in a vertical plane or in a horizontal one, the existing taxi rank facility goes – a matter which should have featured in the application and in public notification, in my view. The riposte that there is no certainty yet what solution will be worked out merely serves to point up the validity of the appellants’ objections that the co-respondent’s total application is being made in a piecemeal way, and that the approval it has been given, the subject of the appeal, lacks finality. Given that it seems there will inevitably be some substantial change(s) to the important public facility of the Edward Street taxi rank (whether or not that is a “use” known to the planning scheme), the case seems to me quite different from one like Anka Builders, in which the Council proposes by way of condition some new facility (there a road) which is not simply a replacement of an existing facility.
While it appears the outcome ought to be that each of the appeals is allowed on the limited grounds considered, which are technical, and do not reflect the court’s view of the merits of the proposal, the making of orders will be deferred to permit the parties to consider their positions. The court has been asked by Mr Haydon and Mr Rackemann to (and does) refrain from determining any severability issue.
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