Newcomb and Ors v Brisbane City Council and Anor
[2012] QPEC 71
•14/11/12
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Newcomb & Ors v Brisbane City Council & Anor [2012] QPEC 71
PARTIES:
SIMON NEWCOMB, JENNY NEWCOMB, RICHARD STEINBERG, PIP OCHRE, CAMILLE SMITH-WATKINS, BARRY O’SULLIVAN AND LARA HARLAND
(Appellants)v
BRISBANE CITY COUNCIL
(Respondent)and
ASPECT PROPERTY GROUP AUST PTY LTD
(Co-Respondent)FILE NO:
BD3014/2012
DIVISION:
Planning and Environment
PROCEEDING:
Determination of Preliminary Point
ORIGINATING COURT:
Planning & Environment Court, Brisbane
DELIVERED ON:
14/11/12
DELIVERED AT:
BRISBANE
HEARING DATE:
03/10/12
JUDGE:
Searles DCJ
ORDER:
Application Dismissed
CATCHWORDS:
Appeal – Declaration - Whether properly made application – ss260, 261 Sustainable Planning Act 2009
COUNSEL:
Applicant: J.W Penden (Direct brief)
First Respondent: T.Trotter
Second Respondent: C.L Hughes SC & J.G Lyons
SOLICITORS:
Brisbane City Legal Practice
Warlow Scott Lawyers
Nature of proceedings
By notice of appeal filed 2 August 2012 the Appellants appealed the Council’s decision to approve a Development Application by the Co-Respondent (Aspect).. One of the grounds of appeal was that the Application was not properly made under the provisions of the Sustainable Planning Act 2009 (SPA). By order of Rackemann DCJ of 17 September 2012 that issue was ordered to be determined as a preliminary point. The Appellants now seek a declaration that the Development Application was not properly made.
Aspects of the Development Application
Under cover of a letter of 6 December 2011 JFP Urban Consultants Pty Ltd lodged on behalf of Aspect a Development Application for a Development Permit for a Material Change of Use - Reconfiguration of a Lot and Preliminary Approval for Building Work in relation to the erection of a new Multi-Unit Dwelling and Shop/Office/Restaurant over land located at 28-32 Morrow Street and 2 Harrys Road, Taringa described as lots 1 and 2 on RP54864 and lot 36 on SP159242 (Application).[1] It was impact assessable. The Council issued an approval of the Application on 4 July 2012.
[1]Affidavit ALM Mitchell, 28 September 2012, Exhibit ALM1, p 1
Grounds relied upon by Appellants for Declarations
The Appellants particularised their claim that the Application was not properly made as follows:[2]
[2]Appellants’ further and better particulars of appeal grounds dated 17 September 2012
“ The Appellants provide the following further and better particulars of Appeal ground 4, and Appeal ground 5 to the extent that they concern the Application not having been properly made:
1. The application and supporting documents:
a. wrongly described the height of the proposed development as being 6-9 storeys, whereas the proposed development is in fact 9 storeys above ground level from Morrow Street and 10 storeys above ground level from Harry’s Road;
b. did not address the relevant local government planning scheme, being the medium density residential code, but instead purported to assess the compliance of the proposed development with the Respondent’s planning scheme by reference to the high density residential code;
c. did not include or reference as a relevant planning document the Toowong-Indooroopilly District Local Plan nor did it address the proposed development’s compliance or otherwise with that plan;
d. represented wrongly that a primary code against which the proposed development should be assessed was the Centre amenity and performance code;
e. represented wrongly that the Draft Taringa-St Lucia Renewal Strategy document represented a future Taringa-St Lucia Neighbourhood Plan, and did not correctly reflect the status of the document as appears from clause 1.3.1 of the document;
f. did not address the requirements of the Code of Practice – Railway Noise Management, Guide for development in a Railway environment and therein referred to QLD Development Code Mandatory Part 4.4 as planning documents relevant to the application; and
g. did not include heights of retaining walls within the development, and specifically the retaining wall along the western boundary of the site.
2. The acoustic report accompanying the application did not, as required for a proper assessment of the acoustic impact of the proposed development by the Code of Practice – Railway Noise Management, Guide for development in a Railway environment and QLD Development Code Mandatory Part 4.4:
a. Include 48 hours of testing of noise adjacent to the railway line;
b. Include a graph of the 48 hours of noise testing
c. Take into account the running of long freight trains hauled by diesel locomotives and diesel powered track maintenance machinery.”
Appellants’ primary point
At the outset of his oral submissions the Apellants’ counsel, Mr Peden identified the alleged failure to address the Medium Density Residential Code, the second of the above particulars, as the primary matter. He said:-[3]
[3]Transcript 1.3.20
“… Can I say at the outset to your Honour that the primary matter is the failure to address the Medium Density Residential Code.
… There are four other particulars if I can list them briefly, being one to do with the height, as to whether the building is six to nine storeys, as represented in the application, or ten storeys as the Appellants would contend. A second particular relating to non-disclosure on the application of the height of retaining walls. A third issue relating to inadequate disclosure in an acoustic report. And a fourth – the fourth matter relates to the fact that the applicant didn’t address the requirements of the Local Plan, being the Toowong Indooroopilly Local Plan.
Now I mention those four, I’ll deal with them very briefly at the end, but only really as examples of the mischief that is occasioned by this application. As I say, the primary matter is the failure to address the Medium Density Residential Code.”
Later, Mr Peden said:[4]
“I was briefly going to mention the other points. I have taken your Honour briefly to the non-dealing with the local-other local plans. We mentioned retained walls. I’m not going to take your Honours time up with that. If we’re right on this Medium Density Code … then everything else falls away. If we’re wrong on the Medium Density Code and your Honour’s against me on that then the other points aren’t going to make it either way. .. But I should say formally I don’t abandon them, I just put them in that category.”
[4]Transcript 1.24.58-60; 1.25.1-10
The legislative scheme
Sections 260 and 261 of SPA govern the requirements for a properly made application. Relevantly s 260 provides:-
(1) Each application must–
(b)be in the approved form or made electronically under section 262(3); and
(c)be accompanied by any supporting information the approved form states is mandatory supporting information for the application.
(2) The approved form–
(a) must contain a mandatory requirements part; and
(b)may make provision for mandatory supporting information for the application.
(3) In making an application, the applicant must give the information required under the mandatory requirements part of the approved form.
Section 261 provides:
“An application is a properly made application if:-
(a)The application is made in compliance with ss 260(1) and (3).”
There is no issue as to the approved form but rather only as to the adequacy of the mandatory supporting information in it required by s 260(1)(c).
Other relevant provisions of SPA are s 276 empowering the Council as assessment manager or a concurrence agency to seek further information needed to assess the Application and s 278 obliging the applicant to respond to any such requests or advise that no response will be forthcoming so that the assessment of the Application should proceed without the further information sought. Importantly such information requests and responses must, under s 728 be made available to the public for inspection and purchase.
All of the above mandatory provisions are designed to protect the integrity of the IDAS process in SPA, relevantly in relation to impact assessable applications, to ensure that all relevant information is in the hands of the assessment manager thus facilitating fully informed decisions on applications. An equally important purpose of those provisions is to ensure that any potential submitter is equally fully informed of all relevant information to position that person to make a fully informed decision on whether to make a submission and, if so, the content of any submission.
Bearing in mind that where considering an impact assessable application, it is important to remember that such an application is assessable against the whole of a planning scheme,[5] rather than specific codes as with the assessment of a code assessable application.
[5]s314 SPA
In Pacific Seven Pty Ltd v City of Sandringham & Ors[6] Marks J said:-
“Planning is a difficult exercise with flexibility an essential ingredient. Those entrusted with its implementation should bear in mind that neither individual or community interest is served by recourse to exotic legalism. Whetting the saliva of lawyers with one hand on the guillotine can only frustrate rather than meet the ends of justice, and the expressed intention of the legislature in the field of planning. Whatever be the consequence of legal points which fall to be decided, every endeavour should be made to deal with the substance of an application for permission to use or develop land in a certain way with maximum expedition and fairness.”
[6][1982] VR 157 at 163-164
As Mr Hughes SC and Mr Lyons, counsel for Aspect submitted, that approach has been endorsed many times in this court.[7] Given that impact assessable applications are assessable against the entire scheme, at one end of the spectrum of the mandatory requirement to provide relevant information, an applicant could put the entire scheme before the assessment manager leaving it to the latter to plough through the scheme to identify and assess the applicability of its provisions. That of course presents a ridiculous scenario but points up the need for the applicant, in association with its advisers to conduct the realistic exercise of identifying those parts of the scheme considered relevant to the assessment of the Application. Of necessity that must be a subjective exercise and minds will differ because human beings are involved. But a mere difference of opinion would not, ipso facto, render an application not properly made simply because some information which may attract mandatory obligation is omitted.
[7] See for example Westfield Ltd v. Gold Coast City Council and Ors [2000] QPELR 121 per
Mr Peden referred to the second reading speech of 19 June 2009 in relation to the introduction of SPA and relied on these words of the Minister of Infrastructure and Planning:-
“The improved framework offers accountability. It makes all stakeholders accountable for their actions with a no-nonsense framework that drives a culture of working together. Better and clear understanding of the roles and responsibilities and interests of all relevant parties help provide an accountable framework. Public reporting of specific actions also helps ensure an accountable framework. Applicants have a responsibility to provide the information that will enable efficient and effective assessment.”
He pointed to the last sentence emphasising the responsibility of applicants to provide information to enable an efficient and effective assessment of any application. His point is well made. But also important are the words in the second sentence of the Minister’s statement referring to the intention of the Bill to make all stakeholders accountable for their actions with a no-nonsense framework that drives a culture of working together. The above provisions of SPA referred to are good examples of the process implemented whereby the applicant and assessment manager do work together by firstly, independently identifying and assessing the provisions of the scheme relevant to the assessment. Then, through the information requests and responses process any differences of opinion may be addressed and possibly resolved to be discussed and hopefully clarified. An application does not automatically attract a fatal prognosis as not being properly made simply because, in the initial application, an applicant may have omitted to include something which the assessment manager considers relevant. Each omission must be separately considered in the context of the relevant circumstances.
That consideration may well identify the omission of mandatory information fatal to the Application. The Appellants relied upon one such case, Gates & Ors v Gold Coast City Council & Ors.[8] That was a case of a clear deception on the part of the applicant where the Form 5 requiring mandatory supporting information was answered fundamentally incorrectly. In relation to the relevant question, the applicant answered ‘yes” indicating that the application concerned the intensification of an existing use when in fact there was no relevant prior lawful use. In the words of his Honour, Judge Newton:-[9]
“24.The Third Respondent has thus purported to have the benefit of an approved use as a result of the letter of 25 May 2008 from the Council. The Third Respondent, as advised by its professional town planning consultant, should have known that the letter did not and could not constitute an approval.
25.It should be remembered that the Show Caused Notice issued by the First Respondent in 2009 was issued prior to the lodgement of the Material Change of Use application. The show caused notice SCN, if nothing else, should have served to inform or remind the Third Respondent through its town planning consultant that in the Rule Domain the use of outdoor sport and recreation is Impact Assessable development which requires a development approval.”
[8][2011] QPEC 94
[9]Ibid, para 24
In the result the application was held to be not properly made because it was premised on the fact that it was only the intensification of an existing Tourist Facility use, whereas, in fact, there was no existing use or approval for any Tourist Facility.
Consideration of Appellants’ grounds
Primary matter – Aspect’s alleged failure to address the Medium Density Residential Code
The relevant form completed by Aspect is the Material change of use assessable against a planning scheme – IDAS Form 5 Item 6 of which is, relevantly in these terms:-
“6Confirm that the following mandatory supporting information accompanies this application:
· A statement about how the proposed development addresses the local government’s planning schemes and any other planning documents relevant to the application.”
Compliance with that requirement was confirmed by Aspect on that form.[10]
[10]Mitchell affidavit, p 10
The fact that the subject land was in the Medium Density Residential Zone was made clear in the Application.[11] What is in issue however is that, when identifying the planning scheme codes,[12] the Application stated:-
[11]Ibid, pp 9, 47, 51, 55
[12]Ibid, p 57
“The proposal has been designed to comply with the applicable City Plan 2000 Codes, which are listed below:
Primary Codes
·Residential Design – High Density Code
(NB. The draft Taringa–St Lucia Renewal Strategy envisages buildings up to 12 storeys in height on the site, therefore the High Density Code has been addressed for completeness).
·Centre Design Code
·Centre Amenity and Performance Code
(NB. The draft Taringa–St Lucia Renewal Strategy includes the subject site within a Centre of Mixed-Use Designation. Therefore the Centre Design and Centre Amenity and Performance Codes have been addressed for completeness).
…”
It will be seen that no reference is made to a Medium Density Residential Code. The Appellants say firstly that s 260(1)(c) was breached because the application was not accompanied by mandatory reporting information in relation to that Code. Secondly s 260(3) is breached because of the failure to provide that information and because what was provided, being an assessment against the Residential Design – High Density Code, was materially incorrect and in breach of Aspect’s declaration of compliance.
The relevant declaration of compliance in IDAS form 1 paragraph 17[13] is in these terms:
‘By making this declaration, I declare that all information in this application is true and correct (note: it is unlawful to provide false or misleading information).”
The preceding paragraph 16 lists all the forms and supporting information accompanying the application the subject of the clause 17 declaration. The declaration is not one that purports to declare, in terms of IDAS Form 5 paragraph 6[14] that all the mandatory supporting information therein set out does, in fact, accompany the application, but rather, only that what is provided is true and correct. There is no breach of this declaration.
[13]Ibid, p 3; declaration p 7
[14]Ibid, p 10
It is clear from the contents of Aspect’s application, specifically given the omission of reference to the Medium Density Residential Code, that Aspect considered the High Density Code was the applicable code given the existence of the draft Taringa-St Lucia Renewal Strategy.[15] The Council had a different view. By letter dated 13 February 2012[16] it sent Aspect an information request under s 276. Relevantly it said:-
[15]Ibid, p 57
[16]Ibid, p 302
“City Plan and Codes
Medium Density Code
1.The proposed development was assessed against the High Density Code on the basis that it was appropriate because the site classification will change in the proposed Draft Taringa-St Lucia Renewal Strategy. While it is acknowledged that this is the case the Draft Renewal Strategy is still in the early stages of development. Therefore Council cannot give full weight to the provisions of the draft plan. The proposal must be considered under its current Medium Density Residential Area classification. Provide information addressing the provisions of the Residential Design-Medium Density Code.”
By letter dated 28 February 2012 JFP responded to that information request and dealt in detail with the Medium Density Code.[17] In that letter[18] JFP referred to the enclosure of a Code Assessment checklist addressing the provisions of the Medium Density Residential Code. By oversight, that was not included but was sent along to the Council under cover of an email some three weeks later on 21 March 2012, the last day of public notification of the application.[19] It was not posted on the Council website until the following day. The appellants say that that was an important document which was unavailable to potential submitters.
[17]Ibid, pp 310-312
[18]Ibid, p 311
[19]Ibid, p 473
I agree the submitters were denied the checklist but they were not denied access to the application, Council’s information request and Aspect’s response to that request. All those documents were available for public inspection prior to the closing of the public notification period on 22 March 2012. Given the contents of those documents it cannot be said in my view that either the assessment manager or any prospective submitter was denied access to sufficient information to allow an informed decision to be made as to approval of the application or whether or not to lodge a submission such that it could be said the application was not properly made. Further, there was no obligation on aspect to provide any checklist.
At the point of cessation of the public notification period on 21 March 2012,[20] any prospective submitter would have been aware of:
[20]Exhibit 1
(a) Lodgement of the application;
(b) The zoning of the subject land as Medium Density Residential;
(c) The assessment of the application by Aspect against, relevantly, the Residential Design-High Density Code but not the Residential Design-Medium Density Code;
(d) The Council’s information request of 13 February 2012 advising that the application should be assessed against the Residential Design-Medium Density Code;
(e) JFP’s response of 28 February 2012 to the information request dealing in detail with the Medium Density Code. This response was available inspection some three weeks up to the end of the public notification on 22 March 2012.
(f) The fact that the checklist referred to in the letter of 28 February 2012 was not included.
No reasonably intelligent and diligent prospective submitter could have been under any misapprehension that the Medium Density Code was, from and after the Council’s information request, to be regarded as a relevant code in the assessment exercise. Differing views of Aspect and the Council prior to that point are not fatal to the application so as to make it one that was not properly made. The Appellants fail on this ground.
Remaining issues
It is not strictly necessary to deal with each of the other grounds[21] relied on given my finding as to the Medium Density Code issue and what I take to be Mr Peden’s sensible acknowledgment, without abandonment, that in that event those other issues would not, in effect, found the declaration sought. But, for the sake of completeness I shall deal with them.
Height
Particular 1(a)
[21] Referred to at paragraph 4 of this judgment
The appellants allege that:
(1)The application and supporting documents:
(a) wrongly described the height of the proposed development as being 6-9 storeys, whereas the proposed development is in fact 9 storeys above ground level from Morrow Street and 10 storeys above ground level from Harry’s Road.
The general mandatory requirement arises from item 6, form 5. That general requirement is in the following terms:
6.Confirm that the following mandatory supporting information accompanies this application:
information that states:
· the existing or proposed floor area, site cover, maximum number of storeys and maximum height above natural ground level for existing or new buildings
Page 8 of the accompanying JF&P report provided:[22]
“overall height of the building ranges from 6 – 9 storeys, with a maximum RL not exceeding 62 metres AHD.”
[22] Mitchell, page 50
This particular was not addressed in the appellants’ written submissions. The proposed development is on a sloping site, where the number of storeys above natural ground level will vary and may be the subject of debate. The issue turns on ones interpretation of “story”, and in this regard the Council cite the approach of Rackemann DCJ in Bon Accord Pty Ltd v. Brisbane City Council & Ors (2008)163 LGERA 288 at 317 where his Honour observed:
“The City Plan defines storey as “a space within a building which is situated between 1 floor level and the floor level next above it”. The applicant relied on the modest differential in height between the supermarket and the specialty shops. If that were all that was required to create an additional storey, then a house with a sunken lounge would, presumably, be a two storey building. I accept the submission on behalf of the first and third Aspect that, in context, the floor level “next above it” refers to a floor level situated wholly or partly over the storey below.”
My interpretation of the plans A2-100, A2-101, A2-102 and A2-103[23], with respect to stories, is consistent with the 6-9 story range given in the JF&P report. I agree with the Councils submission that while people may have differing views as to the appropriate characterisation of the number of storeys, such debate does not render the development application not properly made. That is particularly so in this case, where the plans in the JF&P report show the existing ground level, the different level or storeys, the heights of each level in AHD, and the maximum RL (which does not exceed the 62 metres AHD).
Heights of retaining walls
Particular 1(g)
[23] Mitchell, pages 195, 196, 197, 198 and 199. NB: These plans were wrongly referred to in the Council’s original outline as AS-100 – AS-103.
The application and supporting documents:
(g) did not include heights of retaining walls within the development, and specifically the retaining wall along the western boundary of the site.
Part 6 of IDAS form 5 requires the following relevant mandatory supporting information: [24]
[24]Affidavit of PO p. 18.
“a site plan drawn to scale (1:100, 1:200 or 1:500 are the recommended scales) which shows the following:
…
·the location of any proposed retaining walls on the relevant land and their height.”
Again this particular was not addressed in the appellants’ written submissions. The co-respondent and respondent submit, and I agree, that the plans accompanying the development application (at a scale 1:100 scale at A1) show all of the development sought. The location and height of any proposed retaining wall is identifiable by the plans drawn to scale. The height is further clarified by the town planning report that accompanied the development application which states that any retaining wall will be less than 2m in height. [25]
[25]Affidavit of PO p. 137.
Inadequate disclosure in Acoustic report
Particulars 2(a) – (c)
The appellants allege:
“The acoustic report accompanying the application did not, as required for a proper assessment of the acoustic impact of the proposed development by the Code of Practice – Railway Noise Management, Guide for development in a Railway environment and QLD Development Code Mandatory Part 4.4:
(a) include 48 hours of testing of noise adjacent to the railway line;
(b) include a graph of the 48 hours of noise testing
(c)take into account the running of long freight trains hauled by diesel locomotives and diesel powered track maintenance machinery.”
The applicant submits that the acoustic report and amended acoustic report fails to take into account the necessary acoustic modelling and that the information requests of both the BCC and DTMR have not been responded to. For example the appellant points to the non-compliance with the requirements of noise data logging for a 48 hour period set out in the Queensland Development Code Mandatory Part 4.4. The report and amended report cover only a 24 hour period. The reports also fail to address requests for information from DTMR, which form particulars 2(b)&(c). I also find it unusual that the Decibell consultants chose a Sunday to conduct the rail noise logging. However the respondent and co-respondent rightly submit that these issues are not mandatory requirements in the approved form, and consequently not matters that go to whether the development application was properly made. These issues would be more appropriately raised at the hearing on the merits.
Requirements of the Toowong Indoorpilly Local Plan
Particulars 1(c)
The appellants allege that the development application and supporting documents:
“did not include or reference as a relevant planning document the Toowong-Indooroopilly District Local Plan nor did it address the proposed development’s compliance or otherwise with that plan.”
This general requirement arises from item 6, form 5[26] and is in the following terms:
[26] Mitchell, page 10
6. Confirm that the following mandatory supporting information accompanies this application:
· a statement about how the proposed development addresses the local government’s planning schemes and any other planning documents relevant to the application
The co-respondent submits that by virtue of the town planning report, the development application did reference the local plan as a relevant planning document, where it provided;
“The site is located within the boundaries of the existing Toowong Indooroopilly District Local Plan. Under this plan the site is not located within a specific precinct, being situated just outside the Taringa Suburban Centre Precinct. The existing local plan identifies no specific requirements in relation to the subject site.”
Independent of the reference in the town planning report, the development site is not within any precinct of that Local Plan, and there are therefore no specific requirements in this Local Plan relating to the development site.[27] I accept that a failure to address this Local Plan in great detail is not a breach of the requirement, because it is of practically no relevance to the assessment, and would not preclude a prospective submitter from accessing the information needed to lodge a submission. Consistent with my finding above it has no bearing on whether the application is a properly made application.
[27] Mitchell, pages 56 and 499
The application is dismissed
Newton DCJ; Luke & Ors v. Maroochy Shire Council & Anor [2003] QPELR 447 per Wilson
SC DCJ; Cornerstone Properties Ltd v. Caloundra City Council & Anor [2004] QPELR 54 per
Robertson DCJ; Bundaberg City Council v. Burnett Shire Council & Anor [2004] QPELR 459
per Skoien SJDC; Mooncraft Pty Ltd v. Redland Shire Council & Anor [2006] QPELR 338
per Griffin SC DCJ; Devy & Anor v. Logan City Council [2011] QPELR 112 per RackemannDCJ.
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