Newing & Ors v Silcock & Ors

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Newing & Ors v Silcock & Ors [2010] QPEC 49
PARTIES:	KENNETH NEWING First Applicant And EMMANUEL DRIVAS AND MARIA DRIVAS Second Applicants And JOHN STEELE AND VALERIE CUTHBERT-STEELE Third Applicants v PHILLIP SILCOCK AND PAMELA SILCOCK First Respondents And BRISBANE CITY COUNCIL Second Respondents And BRYWELL PTY LTD t/as BRISBANE CERTIFICATION GROUP (ACN 096 810 178) Third Respondent
FILE NO/S:	2434/2009
DIVISION:	Planning and Environment
PROCEEDING:	Originating application
ORIGINATING COURT:	Planning and Environment Court, Brisbane
DELIVERED ON:	17 June 2010
DELIVERED AT:	Brisbane
HEARING DATE:	14 December – 17 December 2010 and 3 February – 4 February 2010, further submissions received until 10 February 2010.
JUDGE:	Judge Rackemann
ORDER:	That the application is dismissed.
CATCHWORDS:	DECLARATIONS AND ORDERS – House constructed to a height exceeding 8.5 metres without approval – further construction stayed by order of the Supreme Court – subsequent approval obtained – whether that approval validly granted – Wednesbury unreasonableness – failure to take account of relevant considerations – whether assessment officer erred – whether any such error can be imputed to the delegate who made the decision – whether the rule in Jones v Dunkel applies – whether discretion should be exercised to withhold relief in any event.
COUNSEL:	Mr Gallagher QC and Mr Morzone for the Applicants Mr Gibson QC and Mr Johnston for the First Respondents Mr Hinson SC with Mr Lyons for the Second Respondents
SOLICITORS:	Herbert Geer for the Applicants Norton Rose for the First Respondents Brisbane City Legal Practice for the Second Respondents King and Company for the Third Respondents

Introduction

The first respondents (Silcocks) have carried out construction work for a house on their land at 79 Kneale Street, Holland Park. The applicants are neighbours who complain that the house is too high, with consequent impacts of which they complain.

Kneale Street is located on a hill. The properties along it afford panoramic views from east to west, taking in the Greater Brisbane area, including the CBD. As one might expect, those houses generally seek to take advantage of the views. Some are relatively tall. A number exceed 8.5 metres in height above ground level, with some exceeding 12 metres in height.

The second applicants (Drivas’) reside on the immediate uphill side of the Silcock property, in a house which gains its access from Garvary Street to the south. The Drivas’ property takes pride of place near a crest. The Drivas’ large and impressive home affords magnificent views, and will continue to do so. It is they who have funded and assumed the carriage of this proceeding.

The first applicant (Newing) is the proprietor of 81 Kneale Street, which adjoins the Silcock property on the downhill side. The third applicants (the Cuthbert-Steeles) are the proprietors of 20A Garvary Street, which adjoins the Silcock property to the rear. The Silcock and Newing properties once formed part of a larger lot which included the Drivas’ property. Their lots were created by a re-subdivision and gain access to Kneale Street via an easement. They too have, and will continue to have, splendid views.

When the Newing lot was sold, it was subject to an obligation for buildings to be below a certain height. The Drivas’ did not take the precaution of obtaining the benefit of a similar obligation when selling the lot which is now owned by the Silcocks. Mr Drivas says that he did not think it necessary, because the then purchaser had plans for a house (which the Drivas’ had had designed to their satisfaction). That purchaser, however, re-sold to the Silcocks, who are not bound (and do not wish) to build to those plans.

The subject land is within the Low Density Residential Area under Brisbane’s City Plan. Within that area a house, where complying with the specified acceptable solutions in the House Code, is subject to self-assessment only. Relevantly, the acceptable solutions to the House Code refer to a house, no part of which is more than 8.5 metres above ground level. The expression “ground level” does not refer to the existing ground level. Rather, it is defined in part, as follows:

“The level of the land at the time the original estate was subdivided, and the roads through the estate created, as determined by a licensed cadastral surveyor using best evidence.”

The determination of “ground level,” as defined, is not always a straightforward exercise. That is particularly so where, as here, there is a sloping site, the level of which has been changed over time.

The Silcocks intended to build within the 8.5 metre height and so retained a licensed cadastral surveyor, Mr Hayes, to assist their architect, by determining the ground level. They obtained a development permit from the third respondent, a private certifier, for the purposes of assessing the building work against the building code. A development permit was issued. A site variation, to permit the house to be located closer to the side boundaries was granted. On the face of it, the Silcocks then had the benefit of all the approvals they needed in order to proceed.

Construction of the house commenced in or about July 2008. At some point the Drivas’ became concerned about the height to which the Silcock residence would be built. Whilst their own home will overlook the Silcock residence and retain panoramic views, they were particularly concerned that the part of the Silcock house closest to their common boundary would rise above the level of a low hedge which is within the Drivas’ outdoor area, proximate to their common boundary.

On 4 February 2009, the Drivas’ commenced proceedings in the Supreme Court. It was alleged that:

(i) the house was being constructed in breach of an oral agreement for it to be limited to one metre below the hedge, and
(ii)the house would exceed 8.5 metres in height, as defined, with the consequence that it was not self-assessable under City Plan, but instead required a development permit in response to a code assessable development application for a material change of use.

In support of the latter of those contentions, the Drivas’ obtained a report from another licensed cadastral surveyor, Mr Christofis, who took issue with Mr Hayes’ determination of ground level.

On 20 March 2009, the council issued an enforcement notice, apparently having also formed the view that the house would exceed 8.5 metres in height. The effect of that notice was stayed by an appeal to this court. On 6 April 2009, the Supreme Court granted an interlocutory injunction. In the course of his reasons, the Chief Justice said that, “there is considerable evidence that it [the house] exceeds 8.5 metres.”

In the meantime, the Silcocks lodged a development application, seeking approval for a house over 8.5 metres in height. In support of that application they obtained advice from yet another licensed cadastral surveyor, Mr Byrom, who derived a different ground level than either of the other two surveyors. On Mr Byrom’s approach, the house is 11.49 metres in maximum height.

The development application was code assessable, so no third party appeal rights accrued under the IPA. Nevertheless, City Plan required the application to be notified for public comment. The applicants in this proceeding took the opportunity to make comments to the council. In so doing, the council was provided with the Christofis survey and also with reports from experts in the fields of town planning and visual assessment, which argued for refusal of the application. The council was warned that any approval would be the subject of court challenge.

On 20 July 2009 the council, by its delegate, decided to approve the development application. The council’s earlier enforcement notice was then withdrawn and the Silcocks discontinued their appeal against the issue of that notice.

The applicants, who have no statutory right of appeal on the merits, now seek to challenge the validity of the council’s decision. The applicants seek relief in relation to each of:

(a) the building permit issued by the third respondent; and

(b)the council’s approval, including a subsequent change to that approval.

It is not contentious that the building permit is invalid. Its validity depended upon the development being self-assessable which, in turn, depended on the house not exceeding 8.5 metres. The respondents accept that Mr Hayes’ approach to determining ground level was wrong and that the house does exceed 8.5 metres. It follows that the building permit was not validly given. A new one (including a new variation of siting requirements) will be required if the construction is to be regularised. That cannot happen in the absence of a valid development permit for the material change of use and preliminary approval for building work to be assessed against Brisbane’s City Plan. Consequently, the argument focused on the validity of the council’s decision to approve the code assessable application made to it. The validity of the subsequent change to that approval stands or falls with the primary approval.

Wednesbury unreasonableness

The applicants seek a declaration that:

“The decision notice is not valid and [is] of no effect because the development was at the time of the decision and on the material before the second respondent in such conflict with the House Code that the decision to approve the development was so unreasonable that no reasonable decision-maker could reasonably have approved the application.”

The applicants’ case was, therefore, principally based on Wednesbury unreasonableness.

In Bon Accord Pty Ltd v Brisbane City Council & Ors[1] I said-

“The applicant relies on what is commonly referred to as “Wednesbury unreasonableness.” The test has been described as “stringent” and “extremely confined.” It is not sufficient to establish that, as a matter of merit, a different decision ought to have been preferred. What must be established is that no decision maker, acting reasonably, could have made that decision. In applying that standard, a court must proceed with caution, lest it exceed its supervisory role, by reviewing the decision on the merits. Whilst this court is often charged with the responsibility of reviewing a planning authority’s decision on the merits in the context of an appeal, that is not its role in proceedings of this kind. In Associated Provincial Picture Houses Ltd it was said that “to prove a case of that kind would require something overwhelming.”

[1] (2008) 163 LGLRA 288 at [112].

In establishing Wednesbury unreasonableness, in the present context, the applicants also face the hurdle that the relevant provisions of the applicable code (discussed later) call for the assessment of matters involving degree and judgment, such as, for example, whether building height creates “overbearing” development. Different conclusions in relation to such matters will often be available and indeed, in this case, competing assessments and opinions were before the council and before me. It is often difficult, in such a context, to demonstrate Wednesbury unreasonableness.

In Lillywhite v Chief Executive Liquor Licensing Division, Department of Tourism, Fair Trading and Wine Industry Development[2] the Court of Appeal referred, with approval, to the principles expressed by Gibbs J in Buck v Bavone[3] in which, after discussing other grounds for review, it was said (underlining added):

“Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears too unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.”

[2] [2008] QCA 88.

[3] (1976) 9 ALR 481.

Referring to this passage, Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu[4] said at 654:
[4] (1999) 197 CLR 611.

“This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.”

In the same case, Gleeson CJ and McHugh J said at 626:

“Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as “illogical” or “unreasonable,” or even “so unreasonable that no reasonable person could adopt it.” If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.

In Puhlhofer v Hillingdon London Borough Council[5] at 518 Lord Brightman said:

“Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.”

[5] [1986] AC 484.

Skoien SJDC analysed the rationale behind these principles in Cox & Ors v Maroochy Shire Council & Ors,[6] at 63 (underlining added):

“The rationale behind the principles applying to the approach adopted by courts to the decisions of administrative authorities, as it seems to me, depends not just on the fact that the legislature reposed in the administrative authority the power and the duty to make the decision. It must also have been, at least in part, based on pragmatism. These administrative decisions are made on many occasions. It would be intolerable if each of them could be reversed by litigation after microscopic examination by experts and advice by lawyers. The orderly progression of a council’s duties could grind to a halt if each administrative decision were delayed while each possible error was considered minutely before the next step was undertaken.”

[6] [2006] QPELR 628.

Relevant / Irrelevant considerations

By their fifth amended application, the applicants also challenged the council’s decision on the basis that it took into account irrelevant considerations and failed to take into account relevant considerations. In doing so, they seek to challenge the decision on the basis of asserted errors or flaws in the assessment process and, in particular, the reasoning of the council officer who recommended approval. In this regard the applicants must establish both that the decision maker erred and that the error could have materially affected the decision.[7]

[7] See Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 per Mason J at 39-41 & Lansen & Ors v Minister for Environment and Heritage & Anor (2008) 163 LGLRA 145 at [90]-[91].

These alleged errors are discussed later in these reasons. It is necessary first, however, to identify what fell for determination by the council, analyse the evidence of what was decided, whether that decision was open to the decision maker and whether such reasons as have been given demonstrate a vitiating error.

What fell for determination

The development application was for a development permit for a material change of use and a preliminary approval for building work. The application was made under the Integrated Planning Act 1997 (“IPA”) and sought assessment against the applicable provisions of City Plan. The application was code assessable, but, pursuant to City Plan, it was one in respect of which:

“Council will be seeking views of the surrounding community in the form of additional advice or comment form third parties to promote community awareness of the proposal, and to assist in the decision stage of the development application.”[8]

[8] Chapter 3, Page 5, s2.5.1.

Being code assessable, the application was required to be assessed only against the matters referred to in section 3.5.4. Relevantly, for present purposes, that was any applicable codes and the common material.[9]

[9] The “common material” is defined in Schedule 10 of IPA.

The relevant level of assessment table in City Plan identified the House Code as the applicable code. That code contains a statement of purpose as well as requirements, expressed in the form of performance criteria and acceptable solutions. City Plan provides (in part) as follows in relation to performance criteria and acceptable solutions (underlining added):

“Performance Criteria and Acceptable Solutions
The Acceptable Solutions are in the right hand column of the Code table. In some cases meeting an Acceptable Solution requires compliance with Australian Standards or the Plan’s Planning Scheme Policies.
For self assessment a proposal must comply with all specified Acceptable Solutions.
For code assessment a proposal that complies with all Acceptable Solutions will be approved.

For appropriate impact assessment a proposal that complies with all Acceptable Solutions will be approved, subject to:
·being able to be conditioned to mitigate any potential adverse impacts
·meeting the Code’s purpose
·meeting the Plan’s DEOs.

The Performance Criteria are in the left hand column of the Code table. They provide a statement of the outcome that the Acceptable Solution must achieve. A proposal not complying with an Acceptable Solution must provide sufficient information to demonstrate how the corresponding Performance Criterion has been met.
…
For code and impact assessment the Acceptable Solutions represent the preferred way of complying with the Performance Criteria. There may be other ways of complying with the Performance Criteria while still meeting the Code’s Purpose. It is the responsibility of the applicant to demonstrate how alternative solutions comply with the Code’s Performance Criteria. A proposal that fails to comply the Performance Criteria, except in insignificant details, will be refused where it cannot be conditioned to mitigate impacts.”

A proposal may therefore depart from an Acceptable Solution, but still be consistent with the Code. In this case attention was focused on P2 and P3 of the House Code which provide as follows:

Performance Criteria

Acceptable Solutions

P2 Building height must not create overbearing development for dwellings and open space on neighbouring properties.
Building height must be consistent with those houses prevailing in the immediate area

A2 No part of the house is more than 8.5m above ground level. Non-load bearing aerials, antennas, flues, roof ventilators, and chimneys are not considered part of the house for the purpose of determining building height.

P3 Building heights over 8.5m above ground level are consistent with and repeated in the form of surrounding development.
Any additional part of the building over 8.5m above ground level must not result in impacts on other dwellings or open space areas in terms of:

· loss of amenity from overshadowing

· loss of amenity from reduced access to sunlight and daylight

· loss of views or outlook

The additional part of a building over 8.5m above ground level must not result in reduced visual amenity of an area, particularly where the site is on a prominent ridgeline

A3 No Acceptable Solution is prescribed as this provision does not apply to self assessment.

It fell to the council, by its delegate, to assess whether the Silcock house met P2, notwithstanding its departure from A2 and whether it also met P3 (in respect of which no acceptable solution is prescribed). The decision on the application was required to be made pursuant to section 3.5.13 of the IPA which provides, in part, as follows:

“(2) The assessment manager must approve the application if the assessment manager is satisfied the application complies with all applicable codes whether or not conditions are required for the development to comply with the codes.

(3) Subject to subsection (2), the assessment manager’s decision may conflict with an applicable code only if there are sufficient grounds to justify the decision despite the conflict, having regard to-
(a) the purpose of the code; and

(b)if they are not identified in the planning scheme as being appropriately reflected in the planning scheme –
(i) State planning policies, or parts of State planning policies; and
(ii) for the planning scheme of a local government in the relevant area for a State planning regulatory provision- the provision; and
(iii) for the planning scheme of a local government in a designated region- the region’s regional plan.

(4)However, if the decision is made under subsection (3)(a) and the assessment is against a code in a planning scheme- the assessment manager’s decision must not compromise the achievement of the desired environmental outcomes for the planning scheme area.”

Accordingly, the council’s delegate was required to approve the application if it was assessed to comply with the House Code, or could be so conditioned as to comply. In the event that it was assessed to conflict with the House Code, there remained a residual discretion to approve, governed by the provisions of subsections (3) and (4).

The delegate’s decision

The decision on the application was made by Ms Suvela Tieken, Principal Urban Planner, Development Assessment, Development Assessment East, as delegate of the council. Had the application been found to conflict with the House Code, the decision notice would have had to state that and the reasons for approval notwithstanding the conflict. Otherwise, no reasons were required to be given.

Ms Tiekan’s decision was, in fact, in brief terms, relevantly stating as follows:

“Having considered the application detailed above, I am satisfied that the application accords with the relevant standards in the Integrated Planning Act 1997 where applicable and as such approve the application in accordance with the drawings and subject to the conditions attached.”

Condition 8 is in the following terms:

“8) Overall Height- Survey Certification
The overall height of the proposed building(s) is to be in accordance with the following requirement: Construct the floor levels in accordance with the floor levels on the approved elevations as they relate to the contour survey by Goodwin Midson Plan No. 13688-03 dated 4^th March 2009 and received by Council on the 12^th March 2009.
GUIDELINE
This condition is imposed to ensure the floor levels and maximum overall height of the proposed building is in accordance with the development approval. For any enquiries about this condition, please contact the Architect, Development Assessment.
PROOF OF FULFILMENT
This information is to be submitted to the Architect, Development Assessment, and written confirmation of receipt provided by Council.
8(a) Submit Certification
Submit certification from a licensed surveyor that the as constructed floor levels are in accordance with this condition and that the maximum overall height of the building does not exceed 11.49 metres above the ground level, as defined by Brisbane City Plan 2000, at the highest point as per the approved Survey Plan.”

The subsequent decision notice did not identify any conflict with the House Code.

Despite Ms Tieken’s brevity, at least the following two things can be discerned from the decision:

(i)The application was approved on the basis that the proposal complied with the House Code, rather than on the basis of approval notwithstanding conflict; and
(ii)The application was approved on the basis that the maximum height of the house was 11.49 metres, as determined consistently with the survey of Mr Byrom of Goodwin Midson.

The applicants contend that the delegate fell into vitiating error in each of those respects.

Asserted errors on the face of the delegate’s decision

(i) Height of the house

Determining the height of the house above ground level is a mixed question of fact and law. It involves a proper construction of the relevant definition in City Plan followed by a factual finding as to the height of the particular house, in accordance with the definition.

That part of the definition of ground level extracted earlier in these reasons, focuses attention on the level of the land “at the time the original estate was subdivided, and the roads through the estate created,” as determined by a surveyor.

It is common ground that:

(i)the “original subdivision” is the 1963 subdivision which created the estate and not the 1999 re-subdivision which excised the Newing and Silcock lots (in this respect both Byrom and Christofis disagree with Hayes);
(ii)accordingly, the relevant date for determining ground level is March 1963, being the time of registration of the relevant plan;
(iii)that date was used by Mr Byrom in the survey which accompanied the application and in his subsequent report (exhibit 17); and
(iv)that date was also used by Mr Christofis.

The definition of ground level also requires the surveyor to have determined the ground level, at the relevant time, by using ‘best evidence.’ That expression is explained, in the definition of ground level, as follows:

“Best evidence should be based on the most appropriate of the following sources:

-‘as constructed’ plans lodged with Council at the time of subdivision and held by Council’s plan custodian; or

-surveyed spot levels from Council’s sewer maps (BCC Department of Works Detailed Plan); or

-council’s 2002 BIMAP Contours. Where it is evident that the BIMAP contours do not represent the true levels by an amount greater than 0.5m, a site survey by a registered surveyor is acceptable. Evidence must be obtained demonstrating how the contours relate to ground level at the time the original estate was subdivided.

It may be noted that the definition requires a determination by reference to the “most appropriate” of three sources of information, each of which can be expected to plainly show levels or contours.

No surveyor was able to find direct evidence of what the ground level was as at March 1963. It is common ground that in the absence of an ‘as constructed’ plan showing the ground level at that time, the most appropriate of the above, in this case, is surveyed spot levels from the sewer maps. The ‘estate’ was surveyed by the council, as part of the design of the sewerage system, in December 1965. That is the oldest evidence of ground level. The levels shown on that survey were adopted by Mr Byrom.

On the face of it, therefore, the council, in adopting the Goodwin Midson survey of ground level for the purposes of determining the height of the house, appears to have properly appreciated the meaning of the term “ground level” as defined in City Plan and has accepted a determination which accords with that definition.

It was contended, for the applicants, that the Christofis survey represents the true ground level. He adopted the same date for determination of the ground level, and also considered the council sewer map. Instead of adopting the levels as shown on the sewer map, however, he used the contours on the map to interpolate what he considered to be the likely ground level as at March 1963. The result is a different determination of ground level which results in the height of the house being greater, in some places, particularly in the vicinity of the common boundary with the Drivas’. At the south-western end, Byrom determined the roof to be at 8.62 metres and Mr Christofis determined the roof to be 9.85 metres. At the north-western end, Mr Byrom determined the roof to be 9.58 metres, while Mr Christofis determined it to be 10.25 metres. The differences were helpfully marked on the house itself, which I inspected.

The divergence between the surveyors arises because it is likely that there was some cut and fill on the site by the time of the 1965 survey. The consequence is that the use of the levels on the 1965 survey is likely to give a somewhat inaccurate indication of the ground level as at March 1963. Mr Byrom acknowledges that, but still adopts the 1965 levels as the “best evidence.” Mr Christofis, on the other hand, seeks to interpolate what the ground level would have been prior to any cut and fill (ie. the original ground level).

As Mr Byrom pointed out, Mr Chrisofis’ approach too is subject to potential inaccuracy, because it assumes that there was no cut and fill as at the time the estate was created in 1963. As Mr Byrom pointed out, there might well have been works carried out as at 1963. Mr Christofis conceded, in cross-examination, that “we have no idea of the terrain of the subject land in 1963.”[10] He was not aware of what activities, if any, had taken place on the land as at 1963.[11] It is unknown whether his process has produced the ground levels of the land as at March 1963. Mr Christofis accepted that his approach involved a degree of speculation[12] and that, given that this is a difficult site, it is possible for surveyors to arrive at different conclusions.[13]

[10] T3-42, Line 10.

[11] T3-42, Line 40.

[12] T3-41, T3-43.

[13] Exhibit 6, page 2, paragraph 4; Exhibit 6C, page 1.

As was pointed out on behalf of the respondents, adoption of the levels in the 1965 survey plan, being the “best evidence,” not only accords with the definition in City Plan but has the virtue of achieving some certainty in the identification of “ground level.”[14]

[14] Malcolmson Catchpole v Glenn Cameron Rhode, Unreported, 30/4/2001.

Ultimately it is not for the court to make its own finding about “ground level.” As was submitted for the council, the definition does not set up an objective outcome which must either be right or wrong according to the application of definite and fixed criteria. Rather, it requires a determination to be made by an appropriately qualified person (ie. a licensed cadastral surveyor). The determination is to be made by that person using “best evidence.” That is to be “based on the most appropriate” of the three nominated sources of information. Mr Byrom’s determination answers that description and it was open to the council delegate to accept that determination.

The definition called for the delegate to adopt a level as determined by a licensed cadastral surveyor using best evidence. That is what she did. There is no basis for concluding that there was any error of law as to the requirements of the definition. To the extent that her adoption of that, rather than the survey of Mr Christofis, involved any error it was, at most, an error of fact. There is no reviewable error simply in making a wrong finding of fact.[15] The contention that the council erred in failing to have regard to a relevant consideration, being the height of the building determined in accordance with Mr Christofis’ survey, cannot convert a non-reviewable factual finding into a reviewable jurisdictional error.

(ii) Compliance

[15] Waterford v Commonwealth (1987) 163 CLR 54; ABC v Bond (1990) 170 CLR 321; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 142 ALR 622.

It has already been observed that the council’s delegate made her decision to conditionally approve the application on the basis that the proposal complied with City Plan, the relevant provisions of which are contained in the House Code. Of the performance criteria, only P2 and P3 are controversial. They called for a judgment about whether:

(i)building height would create overbearing development for dwellings and open space on neighbouring properties;
(ii)building height would be consistent with those houses prevailing in the immediate area;
(iii)building heights over 8.5 metres are consistent with and repeated in the form of surrounding development;
(iv)any additional part of the building over 8.5 metres would result in impacts on other developments or open space in terms of loss of amenity from overshadowing, reduced access to sunlight and daylight or loss views or outlook;
(v)the additional part of the building over 8.5 metres would result in reduced visual amenity.

To the extent that the purpose of the House Code was also relevant (a matter discussed later), the following parts of the statement of purpose were potentially relevant to the matters dealt with in P2 and P3:

(i) to ensure that houses and ancillary development are compatible with surrounding development;

(ii)to ensure the height of a house allows reasonable access to daylight and sunlight for neighbouring houses and their open space;
(iii)to ensure houses over 8.5 metres above ground level do not adversely affect outlook or views; and
(iv)to ensure houses do not impact adversely on amenity.

Those matters involve assessment and judgment on matters of fact and degree. Subject to one qualification, the material before the council, which included conflicting expert opinion evidence, was sufficient to render the delegate’s decision reasonably open. On the hearing of this proceeding, I had the benefit of further conflicting expert evidence and a site inspection to better understand that evidence, but that does not lead me to a different conclusion.

The amenity and architectural experts agreed that:

(i)experts within the same field may have different opinions on issues to varying degrees. If council’s assessment has adequately considered alternative points of view and then accepted one and rejected the other, then the process may be considered reasonable, appropriate and logical;[16]
[16] Joint report of amenity experts, page 3, paragraph 3; Joint report of architects, page 3, paragraph 3.
(ii)council had before it sufficient information and thorough arguments on each side in order to carry out an appropriate decision-making process;[17]
[17] Joint report of amenity experts, page 4, paragraph 6(j); Joint report of architects, page 4, paragraph 8(k).
(iii)As to the Steele’s house:
(A) the Silcock’s house is not overbearing;[18]
[18] Joint report of amenity experts, page 6, paragraph 9.

(B)there is no loss of views by reason of the exceedance in height above 8.5 metres[19] (although it is noted that Mr Middleton- the applicants’ architectural expert- suggests, contrary to Mr Chenoweth (applicants’ amenity expert) that views from the Steele’s house are adversely affected);[20]
[19] Joint report of amenity experts, pages 13-14, paragraphs 10(e) to 10(h).
[20] Joint report of architects, page 7.

(iv) As to the Drivas’ house:

(A)the Silcock’s house is not overbearing with respect to the Drivas house per se;[21]
[21] Joint report of amenity experts, page 7, paragraph 10(f).
(B)any loss of views and outlook from habitable rooms is not significant;[22]

(v)As to the first applicant’s (Newing) house, there is no loss of views or outlook associated with the height exceedance;[23]
(vi)As to all applicants, there is no significant impact with respect to loss of amenity from overshadowing, reduced access to sunlight and daylight;[24]

[22] Joint reports of amenity experts, page 13, paragraph 15(b).

[23] Joint report of amenity experts, page 14, paragraph 10(i).

[24] Joint report of amenity experts, page 11 and 12.

The main areas of disagreement in relation to matters of relevance were summarised in the first respondent’s submissions as follows:

“ “Overbearingness”
(i)     whether the Silcocks’ house is overbearing with respect to the Newing’s house;[25]
(ii)     whether the Silcocks’ house is overbearing with respect to the driveway entry and outdoor garden area of the Drivas’ house;[26]
(iii)    whether the Silcocks’ house is overbearing with respect to houses on the northern and north-eastern side of Kneale Street (the owners of which are not applicants to this proceeding);[27]
Loss of views and outlook
(iv)    the nature of loss of views and outlook, if any, from the driveway and car manoeuvring areas of the Drivas’ property (although Mr Chenoweth agrees that a reduction in roof height to 8.5 metres above ground level will not entirely remove the alleged “visual intrusion”)[28]
[25] Joint report of amenity experts, page 6, paragraph 10; Joint report of architect, page 7.
[26] Joint report of amenity experts, page 6, paragraph 10(f).
[27] Joint report of amenity experts, page 7, paragraph 10(g).
[28] Joint report of amenity experts, page 13, paragraph 15.
Visual amenity
(v)     whether there is reduced visual amenity for the area by reason of the additional part of the house over 8.5 metres above ground level.”[29]

[29] Joint report of amenity experts, page 15, paragraph 19; Joint report of architects, page 6 (row 5 in table).

The areas of disagreement concern matters of judgment upon which, I am satisfied, it was reasonably open to the delegate to conclude in favour of the Silcocks.

The one qualification relates to the proper construction and application of the provisions which require that houses over 8.5 metres not resulting in loss of views or outlook. It was submitted, on behalf of the applicants, that this required no impact at all. If that were so, then there would be some level of conflict, since it is apparent that parts of the house which exceed 8.5 metres in height can be seen from neighbouring dwellings, including the Drivas’ property, and impede, to some extent at least, vision of what would otherwise lie in the field of view, behind that part of the house. The respondents contend that the provision should not be so strictly interpreted as to preclude consideration of the degree of impact.

This issue has previously been determined by this court in Di Marco v Brisbane City Council & Ors,[30] which is somewhat similar to the present proceedings and involved the same House Code. There a neighbour who enjoyed “wide, virtually untrammelled views,” alleged that the council, in approving an application to add a storey to a house in Hamilton, fell into jurisdictional error or made a decision which was not reasonably open.

[30] [2006] QPELR 731.

The proposal in Di Marco resulted in some loss of views and had effects on outlook. However, Skoien SJDC said (at [27] – [28]):

“[27] … as I understood the Di Marco argument it was that such a mistake had been made because, contrary to Performance Criteria P3 of the House Code, the Coyne proposal involves “impacts on (the Di Marco dwelling) in terms of loss of views or outlook.”

[28] Of course it does to some extent. But if that unqualified criterion were taken at face value, no building of more than 8.5 metre height could probably ever be allowed, indeed no erection at all. Even a dog kennel next door would impact to some extent on views or outlook. So I have not the slightest difficulty in injecting an adjective such as “unreasonable” or “intolerable” into the criterion.

[29] … It would be a difficult conclusion to reach that views from a massive house, built on a high position, are unreasonably or intolerably impacted (and of course one must imply the adjective “adverse” to qualify “impacts” in Performance Criterion P3) by the obliteration from a couple of static points, of a particular and rather narrow view segment when from many other points in the house the very same view is available.”

Similarly, in Cox & Ors v Maroochy Shire Council & Ors[31] Skoein SJDC said (underlining added):

“[64] I have not forgotten that this is not a merits appeal, but in deference to the undoubtedly genuinely held views of the Applicants I should point out some matters which I consider are not able to be challenged. In the absence of an unmistakable and unqualified statutory provision no-one owns a particular view. The erection of any such structure will to some extent impede another’s view. While the right to panoramic views are never (in my experience) protected the right to vistas (that is, “avenue views,” for example between buildings) often are. Unless extraordinary reasons are demonstrated I consider that provisions which say baldly “views must be adversely affected by a development” must be interpreted as qualified by an adverb such as “unreasonably.” Otherwise the provision would prohibit any building at all.”

[31] Supra.

The court has taken a similar approach to the interpretation of provisions dealing with other kinds of impacts.[32]

[32] See for example, Jed Fire Pty Ltd v Council of Logan & Anor [1995] QPELR 41 at 43; Multi-Span Australia Pty Ltd v Department of Main Roads & Anor [2008] QPELR 509 at 510.

This approach is also consistent with the well settled principles of construction of planning schemes,[33] which are largely the work of town planners, not parliamentary counsel. Those principles include that they should be construed broadly, rather than pedantically or narrowly and with a reasonable, practical approach. Given the nature of planning schemes, it should not readily be inferred from the absence of an express qualification that the relevant provision requires no impact at all, no matter how insubstantial, trivial or insignificant. That applies even though a qualification may be expressed in other parts of the planning document. More specifically, P3 of the House Code should not be taken to be offended by a trivial, immaterial, insignificant, minimal or minor impact of the kind mentioned.

[33] See for example, Westfield Management Limited v Pine Rivers Shire Council & Anor [2004] QPELR 337 at [18] and the authorities referred to therein.

I am satisfied that the delegate’s decision was reasonably open.

Other alleged errors

The applicants also plead a number of more specific errors, said to have infected the council’s decision. Those are:

“20ABThe decision of the Second Respondent to approve the development application was a decision that no reasonable assessment manager acting with due appreciation of its responsibilities would have decided to adopt and it took into account irrelevant considerations and failed to take account of relevant considerations.

Particulars

(a) the DA Officer upon whose recommendations the Second Respondent adopted predetermined the application prior to the end of the notification period in complete disregard for an intent not to take into account third party rights;

(b)the Second Respondent failed to take into account relevant considerations, in particular:
(i)an assessment of the whole of the house against P2 and the first part of P3;

(ii)an assessment of the house against the purposes of the Code; and

(iii)the relaxations granted by the Council and the effect which such relaxations had upon the assessment against the requirements of the Code;

(iv)the correct ground level and the full extent of the house above 8.5 metres above the correct ground level;

(v)the full extent of the house above 8.5 metres above even the Goodwin Midson determination of ground level.

(c)the Second Respondent took into account irrelevant considerations; in particular:

(i) the Assessment Team’s conclusion that the house was under 8.5 metres (contrary to the Enforcement Notice);

(ii) the erroneous determinations of ground level by Hayes and Goodwin Midson;

(iii)that DA Officer’s conclusion that the Enforcement Notice had been overturned by the Planning and Environment Court;

(iv)the DA Officers conclusion that inter alia building relaxations, enforcement action and retaining walls were not relevant;

(d)the evidence before the Second Respondent taken as a whole is not capable of supporting the decision;

(e)the assessment manager failed to give proper genuine and realistic consideration to the application.

…

20A Further or in the alternative, the Second Respondent, in assessing the Development Application against the House Code:

(a)failed to assess the Development Application against the purposes of the Code which purposes formed part of the Code for the purposes of a code assessment;

(b)misdirected itself in its assessment of the Development Application against Performance Criteria P2 and the first part of Performance Criteria P3 of the Code by assessing whether only that part of the building over 8.5 metres above ground level met that Performance Criteria rather than the building or proposal as a whole.

20B By reason of the matters in paragraph 20A the Second Respondent:

(a)failed to take into account the restrictions imposed by the purposes of the House Code;

(b) adopted an erroneous interpretation of Performance Criteria P2 and the first part of Performance Criteria P3;

(c)took into account an irrelevant consideration namely whether only that part of the building above 8.5 metres above ground level met Performance Criteria P2 and the first part of Performance Criteria P3 of the House Code;

(d)failed to take into account relevant considerations namely whether the building or proposal as a whole (including the retaining walls and with the Siting Variation (Relaxation) earlier granted and still proposed) met Performance Criteria P2 and the first part of Performance Criteria P3 and each of the purposes of the House Code; and

(e)assessed and decided the Development application in a manner in which no reasonable assessment manager would have assessed and decided the application.”

The applicants’ opening submissions argued paragraph 20AB(e) on the basis of a failure to give “genuine and realistic consideration to the requirements of P2 and P3.”

Paragraph 20AB(d) has already been dealt with. The allegation in 20AB(c)(i) can be disposed of briefly. It relates to an early and erroneous assessment of ground level when the application was made. It is evident that this did not infect the decision, which was made on the basis that the house exceeded 8.5 metres in height, as calculated in accordance with the Goodwin Midson survey.

The allegation in 20AB(b)(iv)(v) and (c)(ii) has been dealt with. For the reasons already given, it was open to the decision maker to accept the Goodwin Midson determination of ground level for the purposes of ascertaining height.

The other allegations focus on the process of assessment and reasoning which led to the decision to approve the application. A difficulty which confronts the applicants, however, is that none of the alleged errors can be detected on the face of the delegate’s decision. Those reasons were brief. She was not obliged to give any, let alone any more extensive, reasons. The applicants did not make any request for a statement of reasons.

The applicants’ case, in this respect, focused on the assessment and reasons which led another council officer, Helena Lulham, to recommend conditional approval of the application. Ms Lulham had the day to day carriage of the application within the council. Her report and recommendation on the application was subject to close scrutiny on the hearing of the proceeding. Ms Lulham was referred to, within council, as the “assessment manager.” She was not, however, the assessment manager as that term is used in and for the purposes of the IPA. It was the council, acting through its delegate, Ms Tieken, who was the assessment manager.

It was submitted, on behalf of the applicants, that Ms Tieken ought be taken to have adopted the reasoning of Ms Lulham, in the absence of evidence to the contrary. Reliance was placed upon the rule in Jones v Dunkel.[34] That rule is to the effect that the failure of a party to adduce evidence may (not must), in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party’s case.[35]

[34] (1959) 101 CLR 298.

[35] See Cross on Evidence, page 40.

It is evident that Ms Tieken’s decision is consistent with Ms Lulham’s recommendation, but it does not necessarily follow that Ms Lulham’s reasoning was also adopted. There is nothing expressly on the face of the decision notice which would justify that conclusion.

As was pointed out on behalf of the respondents, no inference can be drawn on a Jones v Dunkel basis, unless the facts otherwise before the court call for an answer. In Cross on Evidence it is said, in this regard, that (underlining added):

“Secondly, while the rule in Jones v Dunkel permits an inference that the untendered evidence would not have helped the party who failed to tender it, and entitles the trier of fact to take that into account in deciding whether to accept any particular evidence which relates to a matter on which the absent witness could have spoken, and the more readily to draw any inference fairly to be drawn from the other evidence by reason of the opponent being able to prove the contrary had the party chose to give or call evidence, the rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into inference. Nor does the rules prevent any inference favourable to the party who has failed to call the witness from being drawn: other evidence may justify the drawing of the inference.

Thirdly, the rule only applies where a party is “required to explain or contradict” something. What a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case. No inference can be drawn unless evidence is given of facts “requiring an answer.” If there is no issue between the parties on a matter, there is nothing to answer; and if there is an issue between them, but the party bearing the burden of proof has tendered no evidence of it, the opponent is not required to answer.”

In Schroders Australia Property Management Ltd v Shoalhaven City Council,[36] Ipp JA (with whom Spigelman CJ and Sheller JA agreed) held, that material in the possession of council will generally be treated as being in the possession of the councillors (in that case, the decision makers). Ipp JA further held that a Jones v Dunkel inference based on the failure to call evidence had no application to the council’s failure to tender evidence as to which documents were read by the decision-maker in the absence of proof of facts calling for such a response. This was because (at 72):

“… as Windeyer J noted in Jones v Dunkel (at 322) no adverse inference can be drawn from a party’s silence until facts are proved requiring that party to provide an answer. In the present case, the prima facie presumption was that the councillors had read the opinion (which was in the Council’s files) and it was for Schroders to rebut that. No evidence was led establishing that the councillors had not read the opinion. There was therefore no need for the council to lead any affirmative evidence concerning the inspection for the files by individual councillors.”

[36] [2001] NSWCA 74.

It would be conventional to infer that Ms Tieken considered the material which was before the council concerning the application (both in favour of and against), together with the relevant planning provisions. In the absence of evidence to the contrary, I draw those inferences. It is another thing, however, to infer that her consideration of the application was co-extensive with Ms Lulham’s[37] and that she adopted the same mental process in arriving at her decision. The failure to call Ms Tieken does not, in and of itself, establish that she adopted Ms Lulham’s reasoning, in the absence of evidence from which it could otherwise be inferred that that is what she did.

[37] See for example, GIC & Longhurst v Gold Coast City Council [2001] QPELR 83.

In Rashid v Minister for Immigration and Citizenship[38] the Full Court of the Federal Court said (at 17-18):

“Whether or not a particular document records what in fact were the decision-maker’s reasons for the decision is a question of fact: Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) ALR 332 at [56]. Commonly in administrative organisations there will be internal documents such as memoranda, briefing notes, aides-memoire and the like recording advice to the decision-maker or documents recording the decision-maker’s own preliminary thoughts or working notes. Such documents will not necessarily record why the decision-maker made the decision, that is to say the mental process by which he or she actually reached the decision in question.

[38] [2007] FCAFC 25.

In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme[39] Kirby J cited Suresh v Canada (Minister of Citizenship and Immigration)[40] where the Supreme Court of Canada said:

“… the reasons must also emanate from the person making the decision, in this case the Minister, rather than take the form of advice or suggestion, such as the memorandum of [the departmental official].”

Kirby J was in dissent in the result but that statement is not inconsistent with the majority judgments.

[39] (2003) 216 CLR 212 at [117].

[40] [2002] 1 SCR 3 at [126].

There will be circumstances in which it is open to draw an inference that a decision maker adopted the reasoning in a report and recommendation or at least that the scope of the consideration did not go beyond the matters dealt with in such a report. In Currey v Sutherland Shire Council & Ors,[41] for example, the NSW Court of Appeal drew an inference that the council had failed to give consideration to relevant issues under a particular section of the local environment plan, which had not been referred to in the report to council on the application. There was no evidence of any analysis other than that contained in the report to councillors (not themselves professional town planners), who presumably had some general knowledge of the planning instrument, but could not be assumed to have knowledge of the detail of a provision not otherwise drawn to their attention.

[41] (1998) 100 LGLRA 365.

The applicants placed reliance on the decision of the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[42] where Gibbs CJ said, in relation to a Minister making a decision with the assistance of a departmental analysis (at 30-31) (underlining added):

“Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relied entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law.”

[42] (1986) 162 CLR 24.

That begs the question as to whether, in this case, it can be inferred that the delegate simply relied upon the report and recommendation and adopted its reasoning.

Reliance was also placed on the reasons of Cooke J of the New Zealand Court of Appeal in Daganaysi v Minister of Immigration[43] where the Minister’s delegate (the Under Secretary) relied upon the report of the medical referee to assess the condition of the New-Zealand born sick son of a woman who was seeking an exercise of discretion that she not be deported. The tenor of the report was to emphasise the improvement in the child’s condition and discount the risk associated with him living with his mother in Fiji. The author knew, but did not mention, that the specialist clinic which treated the boy had not been consulted. The letter giving notification of the decision said, in part, that, “I have paid particular attention to the question of the health of her child and have gone to some trouble to obtain the best and most recent medical advice available.”

[43] (1984) 2 NZLR 130.

The Court of Appeal unanimously allowed the appeal on the basis that procedural fairness required the memorandum and reports of the medical referee, or at least, their substance, to be disclosed to the applicant before the decision was made, in order that she might have an opportunity to answer them. Cooke J would also have allowed the appeal on the basis of an error of fact. The other members of the Court of Appeal expressed no view on that ground.

Cooke J said that (at 138):

“In the absence of an affidavit by the parliamentary under-secretary the Court can only draw the natural inference from his letter, read in light of the report of the medical referee, which he had before him.”

His Honour went on to say (at page 148-149) (underlining added):

“Taken as a whole the observations of the House of Lords seem to me to provide a strong foundation for holding at least that the traditional duty to take into account relevant considerations extends to considerations which should have been within the knowledge of the Minister. Parliament would be unlikely to confer authority on the Minister on any other basis. Clearly, relevant facts which are know to his department fall within this category. The neat point is whether the same applies to relevant facts within the knowledge of a delegate outside the department, such as the medical referee. The latter knew that the clinic had not been asked whether it was unduly hazardous or inadvisable for the boy to go to Fiji, but evidently from the terms of his letter of decision the Minister did not.

I would hold in such a case as this that when the Minister instructs a referee to ascertain the facts for him and report, the Minister should bear responsibility for a misleading or inadequate report. The Minister has implied authority to delegate the function of making inquiries, but if as a result the Minister is led into a mistake and a failure to take into account the true facts, it is not right that the appellant should suffer. On this view the decision is invalid on the ground of mistake as well as on the ground of procedural unfairness.”

That Cooke J would have held the decision, in that case, to be infected by the inadequacy of the report of the medical referee, upon which reliance was placed, does not lead to the conclusion that Ms Tieken should be taken to have fallen into any error of law which can be identified in the report and recommendation of Ms Lulham. The facts of this case must first be examined to see whether they justify an inference that Ms Lulham’s reasoning was adopted.

The report and recommendation of Ms Lulham was not the only information available to the decision maker. Ms Lulham had made many file notes. She had visited the site and taken photographs. She had compiled a summary of the grounds of objection and her comments thereon. She had made a report to the Development Review Group, within Council, and also had prepared a presentation to the Planning Guidance Committee, which, according to a file note, “supported the DA officer’s recommendation for approval,” subject to the imposition of a particular condition. Mr Gallagher QC ultimately put his client’s case, in this regard, on the following basis:

I accept the force of (i), (iii), (iv), (vi), (vii) and (viii). I do not accept the submission that Mr Drivas unduly delayed after receiving a copy of the house plans. The weight to be afforded to the submission in (ii) is affected by whether the allegation in (ix) has been made out. For the reasons discussed below, it has not.

Evidence as to the potential impact of the house on the value of the applicants’ properties was given by Mr Schultz (who was retained by the Drivas’) and Mr Johnston (who was retained by the first respondents). Their opinions are, to an extent, affected by their views on what impact the house has on the amenity of those properties by reason of its excess height, over 8.5 metres. Insofar as impacts are concerned, I generally preferred the careful and persuasive approach of Mr O’Brien.

Each of the valuers agreed that the effect on the Steele residence is nominal only.

It is difficult to accept that the Newing property would be significantly devalued by reason of the height of the house. Those parts of the house which exceed 8.5 metres are generally not within view. The retaining wall may be unwelcome, but any loss of value by reason of that is not attributable to the fact that the house exceeds 8.5 metres in height. Mr Schultz was of the opinion that the portion of the Silcock house over 8.5 metres on the front (northern) elevation overlooks or overshadows the open entertainment area. I, however, prefer Mr Johnston’s evidence to the effect that any impact on amenity is primarily attributable to the retaining wall, rather than the height of the building.

The valuers agreed that if the Byrom survey was correctly adopted (which, for the reasons stated, it was), then the impact on the value of the Drivas’ house is nominal. If the Christofis survey were accepted then the impact is greater (since the level of exceedance is greater). In that event Mr Schultz would adopt a figure of 5% as representing the reduced market value of the Drivas property. That percentage is relatively minor but applies to a value of $4.8 to $5 million which Ms Schultz places on the Drivas’ home. Mr Johnston, on the other hand, still believes that the impact would be nominal, because the loss of an insignificant part of the view would not, in his opinion, materially affect a prospective purchaser, keen to obtain a landmark property such as the Drivas’.

I accept that, if the Christofis survey were accepted, then there might be some relatively modest reduction in value attributable to the fact that the Silcock house exceeds 8.5 metres in height. That reduction is difficult to quantify. In fairness to Mr Schultz, there is not much to go on, in order to put a number on the likely affect on value, but the 5% adopted by him is not reliable. It was derived by looking at sales at a modern land estate at Gumdale, which is quite dissimilar to the Drivas property, or the market for such a property.

Moreover, I am satisfied that the fact that the Silcock house exceeds 8.5 metres in height has no material affect the value of the Steele or Newing properties. I am also satisfied, on the basis of the Byrom survey, that it has no material affect on the amenity or value of the Drivas property. If Mr Christofis’ survey were used, it may have some relatively modest impact on value, which cannot be readily quantified.

It was asserted, for the applicants, that by the date of the joint report of the surveyors in the Supreme Court proceedings, if not before, the first respondents knew of the error in the Hayes survey, the fact that the house exceeded 8.5 metres and the need for a code assessable development approval under City Plan. Notwithstanding this they:

(i)made a development application expressed to be “out of an abundance of caution in the event that the original determination of ground level is found to be incorrect”;
(ii)appealed against the enforcement notice, thereby staying its effect so that they could continue with the unlawful construction; and

(iii)continued to construct the building, which they knew to be unlawful, until restrained from doing so on 6 April 2009.

Mr Silcock gave evidence to explain his actions. In around February 2007 he engaged an architect, Mr Herron, to design a house and, for that purpose also engaged other experts including Mr Hayes. He instructed both Mr Herron and Mr Hayes that the house was not to exceed 8.5 metres. Mr Herron designed the house on the basis of Mr Hayes determination of ground level and those plans were the subject of an application for a development permit, made to the Brisbane Certification Group in December 2007.

In December 2007, Mr Drivas was given a copy of the plans. In January 2008 a Mr Tucek, on behalf of the Drivas’, wrote to the Brisbane Certification Group alleging that the house exceeded 8.5 metres. Mr Silcock dealt with that by obtaining a certificate from Mr Hayes in response. A building permit then issued in July 2008 and construction commenced, without any further action at that time. I accept that, at that stage, the Silcocks had no reason to believe that their house would exceed 8.5 metres in height and that they proceeded in good faith.

The Supreme Court proceedings commenced on 4 February 2009. On 12 February Mr Hayes told Mr Silcock that he had met with Mr Christofis and that the two surveyors had agreed to disagree. In an unsuccessful mediation on 16 February 2009, Mr Silcock was provided with a report from Mr Christofis. Mr Hayes continued to stand by his survey. From at least this time, the Silcocks knew that there was a serious issue with respect to the height of the house and must have appreciated that there was at least a risk that the construction might be unlawful. The applicants made something of the fact that, in the Supreme Court proceedings, the Silcocks’ counsel said that they were then prepared to “take their chances,” but it must be recognised that, by that stage, the house had been constructed to its maximum height. Their comment should only be seen as applying to the chances they were then prepared to take in completing the project (particularly the internal fitout), rather than as reflecting on any lack of good faith or cavalier attitude to that point.

It is true that, by the time the development application was made, there was mounting evidence, including from Mr Byrom, that Mr Hayes was wrong. As Mr Silcock pointed out, however, he is not a surveyor himself and, as at the time the development application was made “out of an abundance of caution,” he was still uncertain as to who was right.

It is also true that construction of the house continued (until restrained), after serious concerns had been raised about the height. It is however, not always an easy or painless exercise to stop construction, particularly where, as here, the project is well advanced. Contracts were in place, scaffolding was costing approximately $8,000 per month to hire and substantial building finance costs were (and are) being incurred.

There was a suggestion that the Silcocks not only continued with construction, but accelerated it. The evidence is, however, as summarised in the first respondents submissions as follows:

(a) the crane was ordered weeks before mediation;

(b)the rate of progress on construction was the same before and after mediation;
(c)the walls of the house are constructed of a material known as Ritek, which is quick to install;
(d)no additional labour was engaged for the construction in the period after mediation;
(e)following the mediation on 16 February 2009, the builder’s construction programme already in place was maintained. There was no increase in work activity;
(f)the height of the house exceeded both of the determinations of Mr Byrom and Mr Christofis on around 16 or 17 February 2009;
(g)the roof was in place around about the week commencing 20 February 2009, give or take a few days; and
(h) the roof was pre-fabricated and was quick to install in comparison to a traditional roof.

It was submitted, on behalf of the first respondents, that the court should, in any event, exercise its discretion against granting the relief sought particularly having regard to the following:

(a)the Silcock’s conduct had been entirely reasonable, proper and appropriate. In particular, they have not consciously, or deliberately, sought to evade the provision of the House Code;
(b)there would be a substantial waste of resources (public and private) were any of the declarations or orders made;
(c)council, as the guardian of the public interest, is not seeking the declarations or orders;
(d)the Silcocks have not materially benefited from any of the matters the subject of the applicants’ complaints;
(e)to the contrary, the Silcocks would suffer considerable financial hardship were any of the declarations or orders made;
(f)there is no utility in making the declarations and orders if, in the circumstances, the court considers that an enforcement order should not be made, even if a development permit is ultimately not obtained for the house;
(g)this is not a case where planning laws have been undermined;
(h)there is no material impact on the market value of the applicants’ houses;
(i)there are at least 7 houses in Kneale Street and 1 house in Garvary street in close proximity to the Silcocks’ house which exceed 8.5 metres above ground level, including the Steeles’ house; and
(j)any impact on Newing’s property is primarily because of the extent of excavation of his land, for which the Silcocks are not responsible.

The financial consequences to the Silcocks, were the relief granted, would, at this stage, include holding costs and the costs of pursuing another approval from the council (which would also involve public resources). If no approval were forthcoming then the house would presumably have to be altered to come within 8.5 metres in maximum height. Preliminary costings suggest that it would cost the Silcocks at least $300,000 to demolish and remove the building works constructed higher than 8.5 metres and to complete the house to a state fit for occupation.

I accept that the Silcocks did not act in bad faith in proceeding to construct the house. I do not accept that they were to blame for the error in the Hayes determination of ground level. I also accept that the building work was not continued simply in order to achieve a fait accompli, for the purpose of strengthening their position. Those are relevant considerations. Indeed, in Thorne v Doug Wade Consultants Pty Ltd,[60] O’Brien J went to far as to say (underlining added):

“Whilst it cannot be gainsaid that some of the plaintiffs have suffered substantial detriment as a result of the erection of the two storey structure, and were deprived of the opportunity to object against the grand of the permit, they may well have failed, in any event, to stop the additions, had s 18B been complied with in the first place. The structure may still have been permitted by the responsible authority or by the Planning Appeals Board. Because the Wades were not responsible for the grant of a void permit, in my judgment, it can never be equitable to grant injunctive relief of the kind claimed by the plaintiffs. The Wades might yet persuade the responsible authority to grant a valid permit.”

[60] Supra.

His Honour was upheld on appeal to the Full Court. That is not to say however, that good faith alone will be sufficient, in every case, to guarantee the exercise of discretion against granting relief (compare Textor v Brisbane City Council & Ors[61]). Rather, it demonstrates the width of the discretion, which needs to be exercised in the particular circumstances of each case.

[61] [2008] QPELR 625.

My conclusion that no vitiating error has been demonstrated in the delegate’s decision means that this is not a case where the exercise of discretion comes into play. Had I got to that point, than my conclusion would ultimately have depended on the nature of the vitiating error. Had the council been bound to adopt the Christofis survey, then it would have been bound to assess the house on the basis that it exceeds 8.5 metres to a greater extent than what was assumed. That might (not necessarily would), affect the assessment of the impact of the exceedance of the 8.5 metres in height. I have already accepted that there may, in those circumstances, be some modest adverse affect on the value of the Drivas’ property, by reason of the Silcock house exceeding 8.5 metres to that extent.

In those circumstances I would, in balancing the competing factors, have been inclined to grant the relief sought and, in effect, require the council to reconsider the application, leaving the question of demolition to another day, in the event that a new approval was not forthcoming and the applicants then sought that relief.

If the council did not fall into error in accepting the determination of Mr Byrom, then I would, in balancing the various competing considerations, have ultimately exercised the discretion against granting relief. In those circumstances the council’s assessment of the impacts and effect of the proposal was carried out having regard to an appropriate understanding of the height of the proposal and the extent of its exceedance of 8.5 metres, for the purposes of City Plan. Ms Lulham was not troubled by any impact and it is implicit in the decision of the delegate that neither was she. Those opinions were open and indeed, very understandable. The valuers’ evidence satisfies me that, in those circumstances, the value of the applicants’ homes would not have been affected to anything other than a nominal extent. To the extent that the council committed some error by, for example, looking at whether the impacts were minor, rather than non-existent, I would have, in balancing the competing considerations, refused to grant relief in the exercise of my discretion.

Conclusion

The application is dismissed, on the basis that no vitiating error or want of jurisdiction has been demonstrated in relation to the delegate’s decision to approve the development application.

Had vitiating error been demonstrated than I would have exercised by discretion not to grant relief, had the council been acting properly in accepting the Byrom determination of ground level. Otherwise I would have granted relief.

[2010] QPEC 49

17 June 2010