Nimmo v Land One Solutions Pty Ltd
[2006] QPEC 58
•30 May 2006
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: Nimmo v Land One Solutions Pty Ltd & Anor [2006] QPEC 058 PARTIES: GEOFFREY KEITH NIMMO
Applicant
and
LAND ONE SOLUTIONS PTY LTD
First Respondent
and
BRISBANE CITY COUNCIL
Second Respondent
FILE NO: 798/2006 PROCEEDING: Originating application for interim enforcement orders, etc ORIGINATING COURT: P&E Court Brisbane
DELIVERED ON: 30 May 2006 DELIVERED AT: Brisbane HEARING DATE: 2,3,5 May 2006 JUDGE: Robin QC DCJ ORDER: Parties invited to formulate orders requiring demolition of some components of unauthorised development, and “regularising” other components CATCHWORDS: Integrated Planning Act 1997s1.2.3(1), s3.5.19(c), s3.5.21, s3.5.22, s3.5.33, s4.1.5A, s4.3.24, s4.3.25, s5.3.8, s6.5.1.
Application by adjoining owner for enforcement orders about construction approved by private certifier – house constructed exceeded site cover and height limits set by a development approval constituted by a court order approving a material change of use, etc – further non-compliances with development approval – applicant and developer come to terms, including limited demolition – respondent Council contended new impact assessable development applications should be made to regularise exceedences, also to overcome the lapsing of the currency period for the material charge of use – court prepared to resolve matter on basis agreed to by the other parties.
Cases cited:
Co-you Australia Pty Ltd v Gold Coast City Council [2006] QPEC 001
Greet v Logan City Council [2003] QPEC 045
Iron Gates Pty Ltd v Oshlack BC 9800090
Jamieson v Brisbane City Council (BD3818/01)
Jefflane Pty Ltd v Brisbane City Council [2002] QPEC 045
Jewry v Maroochy Shire Council [2005] QPEC 030
Kennedy v Gold Coast City Council [2002] QPEC 086Kilmister v Gold Coast City Council [2001] QPEC 073; [2002] QPELR 260
McDonald v Douglas Shire Council [2003] QCA 203; 126
Matijesevic v Logan City Council [1984] 1 Qd 599
Metrostar Pty Ltd v Gold Coast City Council [2006] QPEC 022
Mudie v Gainriver Pty Ltd [2002] 2 QdR 53
Oshlack v Iron Gates Pty Ltd BC9705319
Shire Council v Brian Hooper & M3 Architecture & Ors [2004] QPELR 308COUNSEL: Mr Skoien – applicant
Mr Litster – first respondentMr Williamson – second respondent
SOLICITORS: K A Taylor – applicant
Nicol Robinson Halletts – first respondent
Brisbane City Legal Practice – second respondent
Before the court is an originating application filed on 20 March 2006:
“Geoffrey Keith Nimmo of “Coorooman”, 38 Dorchester Street, South Brisbane applies to the Planning and Environment Court at Brisbane for a declaration that the development being undertaken at 36 Dorchester Street, South Brisbane, (Lot 12 on SP144776) is contrary to the development conditions determined by Quirk DCJ in a judgment in the matter of Jamieson v Brisbane City Council (BD3818/01) and seeks the following orders or judgment:
I.… an interim enforcement order not to demolish the existing timber paling fence along the eastern boundary of the site …
II.… order.. to cease all development of 36 Dorchester Street, South Brisbane, other than work that will remedy the breaches of the development approval and complete the development in accordance with the development approval. …
1. So much of the development as exceeds maximum permissible site coverage of 60%... is to be demolished…
2.Retaining walls and other development within one metre of the common boundary … are to be demolished and the excavation …filled…
3.Any retaining wall … is to be located no closer than one metre to the common boundary …
4.The existing timber paling boundary fence … is to be retained and repaired …
5.The concrete block fence at the northern portion … is to be demolished and replaced with a fence consistent with the requirement of development approval Condition 53 …
6.Fixed privacy screens … are to be installed to the eastern part of all balconies …
7.All windows in the eastern façade … are to have privacy screens …
8.The southern and eastern elevations of the respondent’s building are to be finished with timber wall cladding …
9.The respondent’s building is to be finished in two or more base wall colours…
10.The colour of the roof … is to be changed to a pale colour …
11.The existing timber paling fence … is … to be retained and all damage… separated…
III.The respondent … meet the applicant’s costs to remedy damage to the applicant’s property … viz: reinstatement of the flue from the old Laundry Shed … remedy the effects … of … splattered … render … and … erosion …
IV.The respondent be ordered to provide the applicant and his successors in title with a registered easement over the respondent’s property extending one metre into the respondent’s property and running from its frontage with Dorchester Street for a length of 31 metres to enable the applicant to access the western façade of the applicant’s house and old Laundry Shed and aid in the restoration of the flue for the old Laundry Shed and ongoing maintenance and upkeep of the applicant’s property. …”
As will appear, the circumstances are ones in which orders might be made under s4.3.24 and/or s4.3.25 of the Integrated Planning Act 1997 (IPA). The court lacks jurisdiction to entertain claims III and IV, which ought to be pursued in the District Court or Magistrates Court as an ordinary civil claim and in the Supreme Court (under s180 of the Property Law Act 1974) respectively.
At the time of filing the application Mr Nimmo was representing himself. He subsequently engaged a solicitor and counsel, Mr Skoien, who handed up an amended originating application when the hearing began on 2 May 2006. As events unfolded, he and Land One Solutions Pty Ltd, the original respondent, represented by Mr Litster, came to terms. The Brisbane City Council, which consented to be joined as second respondent, did not join in the agreement and may not have been given the opportunity to do so. Represented by Mr Williamson, it takes a less accommodating attitude towards the company than the one Mr Nimmo has come to. Whether the court ought to fall in with the other parties’ new joint approach raises some serious questions.
“Coorooman”, also known as “The Grange”, is entered in the Queensland Heritage Register and in the Brisbane City Plan Heritage Register. It is some 125 years old, the entry in the former register noting that: “It remains substantially intact, and is an important example of an early gothic-style house in Brisbane. “Coorooman” occupies a prominent position, and is important as one of Brisbane’s commanding hilltop houses which contributes significantly to the townscape of South Brisbane.” The grounds contain large trees of considerable age and have a park-like appearance. The main residence is set well back from the street – not so the “servants’ wing” on the western side which runs very close to the boundary with number 36; there may be minor aerial encroachment of eaves over windows. The old laundry, to the north, is even closer to the boundary; the flue referred to in the application did encroach. In the course of work at number 36, it has been destroyed to the extent necessary to end the encroachment.
Judge Quirk’s order was made by consent (although it does not say so) on 12 December 2001 in an adverse submitter appeal by Katrina Jamieson. The co-respondent developer was Hotchkin Development Group Pty Ltd. The order was:
“This matter having on the 12th day of December 2001 come on for hearing by way of appeal against the approval by the respondent of an application by the co-respondent in respect of the land situated at 36 Dorchester Street, South Brisbane, described as Lots 18 and 19 on RP11691, Parish of Brisbane, for:
(a)a preliminary approval for carrying out building work; and
(b)a preliminary approval for carrying out operational work; and
(c)a development permit for reconfiguring a lot;
(d)a development permit for a material change of use for the purpose of detached house involving the erection of dwelling houses in excess of 8.5 metres in height and on allotments of an area of less than 450m2 and frontages of less than 15 metres …
The Court was satisfied that:
1.Notwithstanding that there had not been compliance with the provisions of the Integrated Planning Act 1997 relating to the giving of public notice of the application, the subject of the appeal, the non-compliance had not adversely affected the awareness of the public of the existence and nature of the application nor restricted the opportunity of the public to exercise the right to make a submission about the application
2.The Court was further satisfied that the Chief Executive had been given notice of the appeal and of the right to elect to become a co-respondent to the appeal.
It is adjudged that:
1.The appeal be allowed in part; and
2.The application be approved subject to the conditions in the development approval package annexed hereto and marked ‘A’.”
Ms Jamieson’s property was a northern neighbour of Hotchkin Development Group’s site, which consisted of two parcels being reconfigured as three. Her street frontage was to Vulture Street. Mr Nimmo had lodged his own appeal, 3863/2001. He agreed with Hotchkin Development Group to withdraw on terms which were reduced to writing, without obtaining rights against any other developer to whom it might sell.
What has gone wrong, in circumstances where Hotchkin Development Group disposed of the site (Land One Solutions acquired it from a company called Farzan Fur Pty Ltd) is that construction, relevantly that on lot 12, Mr Nimmo’s neighbour, has been under way in accordance with a Development Application Decision Notice issued on 1 February 2005 by BCC (Building Certification Consultants Pty Ltd). The building development permitted by that Notice departs in important respects from what was permitted by the development approval package incorporated in the court’s order. Needless to say, the effect of the departures is to make the building bigger (longer in its footprint and taller) than allowed; stipulations as to finishes, to complement or protect the amenity of “Coorooman” have been ignored.
In my opinion, the whole planning regime becomes a travesty if private certifiers cannot be trusted to carry out what is a public function of issuing development approvals with sufficient understanding, zeal and scepticism to ensure that the proper processes are followed and that any development approved is lawful. The certifier here had no warrant to exceed the parameters of the court’s order. The certifier’s decision notice was issued to Land One Solutions. The court was told that the company offered the certifier an opportunity to become a party in this proceeding. It is unknown what, if any, instructions had been given. There is no basis on which the court can allocate blame. The certifier’s statutory duty is to act in the public interest (under s5.3.8 (1) of IPA and under the statutorily recognised code of conduct he or she has to obtain all information necessary to the task being undertaken: s 5.3.8(2)(e). There is no reason for supposing that my experience would differ particularly from that of other judges. It has been that serious shortcomings which bode to or actually do result in unlawful construction are an annual occurrence:
In Kilmister v Gold Coast City Council [2001] QPEC 073 (appendix); [2002] QPELR 260, there was approval of a “new house [159m²] and sheds” giving a storage area of 633m² and carport of 270m², consistent only with commercial use in a residential area, such that a material change of use application should have been required.
In Kennedy v Gold Coast City Council [2002] QPEC 086 construction was approved (contrary to s 58 of the Standard Building Regulation 1993) on the area of a registered easement, supposedly overlooked because the title details obtained did not go beyond one side of the first page.
In Greet v Logan City Council [2003] QPEC 045 there was a breach of s.20(3) of the Regulation by failure to obtain an amenity and aesthetics assessment for a shed exceeding 60 m² as required by a Council resolution of general application under s 50(1) of the Building Legislation Amendment Regulation of 1998.
In Livingstone Shire Council v Brian Hooper & M3 Architecture & Ors [2004] QPELR 308 where, fortunately, construction had not commenced, as the headnote records:
The specific prohibition affecting private certifiers in s. 56 of the Standard Building Regulation 1993 had been ignored, likewise the prohibition in s22(2) of the same Regulation, likewise that in s.5.3.5(4) of the IPA.
13. Quite apart from the statutory prohibitions which had been ignored, there existed the situation which the provisions did not contemplate, of a purported decision based upon apparently approving plans which did not yet exist. Essentially, no more was available than the architect’s concept for the building. Important matters such as fire safety had not been gone into, the Third Respondent proceeded to the decision stage without doing what was contemplated in the preceding referral stage.”
In this case, there has been either no or insufficient reference to or no or insufficient regard for the development approval constituted by the court’s order. The conditions (including plans) comprehended in that order should have been adhered to to the letter. Although some leeway may have been reserved by conditions 52 and 53 referring to development and building work “generally in accordance with the approved plans, drawings and or documents,” any scope for manoeuvre which may have existed has been unacceptably exceeded here; cf Jefflane Pty Ltd v Brisbane City Council [2002] QPEC 045.
Ms Mangu, a town planner employed by the Council, has compared what is constructed with the approval of 1 February 2005 (which she calls the Building Works permit) and the “Development Approval” constituted by the Court’s order:
“On the basis of my inspections of the site, which was undertaken on 25 April 2006 and 1 May 2006, and the comparative exercise noted above, it is my opinion that two significant changes have been made to the development on the subject land as it has progressed through the design process, namely:
(a)The site coverage for the development, expressed as a percentage, has increased from approximately 52% as approved by the Development Approval to approximately 63% as approved by the Building Works permit. The increase in site coverage is due to two factors, namely:
(1)the modification of the basement car parking area and the first floor entry courtyard on the southern side of the subject land; and
(2)by enclosing the courtyard on the northern side of the subject land.
(b)The overall height of the development has increased. The overall height of the proposal was approved by the Development Approval at RL41.205 and I understand that the overall height of the development, as constructed is at registered level of 41.76. This equates to a height increase of 0.555 metres.”
[10] The northern “courtyard” enclosed was to have been an area open on the east and north, at least, underneath the main living level of the house, which is on a site sloping steeply downwards from Dorchester Street towards Vulture Street, so that the northern elevation has the appearance of a building of three storeys, rather than a building of two storeys on pillars or stilts. The change in (a)(1) has been to roof over a driveway area, which was supposed to be open, accommodating two visitor car parking spaces, so that all parking is in a secured basement, above which there is a large addition to a patio/balcony area. In the interests of privacy for users, a high concrete wall is in place along the eastern side. The vice of those arrangements is not only to block the outlook from the windows in the “servants’ wing” but to deprive users of Dorchester Street of a good part of their view of that wing, indeed of “Coorooman” generally. In the resolution of 2001, in what Ms Mangu calls the Development Approval, if only for “heritage” reasons, that view should not have been cut off.
[11] Apropos parking, the Development Approval required two spaces for visitors; it is contentious whether it required two spaces or three spaces for “tenants.” Arguments are open both ways. A free-standing pillar in the basement appears to limit the practically available parking to three spaces in a basement (at least while certain storage facilities constructed but not shown in the Development Approval remain) with a vertical clearance meeting the usual standards, but falling short of what the Development Approval required. Traffic Engineer, Mr Holland, uncontradicted by any other expert, is of the view that an aggregate three places is adequate, that provision of five would be excessive.
[12] The Council’s statement of its “Position with respect to disputed issues” (Exhibit 4) in my opinion correctly identifies the following aspects of non-compliance - to which I add comments, while acknowledging that, as things turned out, there was no occasion for Mr Litster’s pursuing any challenge that may have been open regarding them:
B. Non-compliance with condition 53 – screen fence (to be 1.8 metres in height and constructed from timber palings along the boundary, unless an alternative design is agreed with the neighbour – the condition to be complied with “prior to the commencement of the use”).
C. Non-compliance with condition 56 – external colours and finishes (external colours are to be “pale and not vivid,” there are to be two complementary base wall colours on the eastern and southern elevations to be “finished with timber wall cladding;” fixed privacy screens are required along the eastern part of the balconies at the first and second floors). Those requirements were said to be “imposed in response to the adjacency of the proposal with the timber and tin State heritage listed place “Coorooman”.”
D. Non-compliance with condition 57 – existing timber paling fence (the point appears to have been protection of a “give and take” paling fence along part of Mr Nimmo’s boundary) during construction. It seems that there may have been a too-generous assessment of the supposed heritage value of the fence, given that it was probably put up in the last three decades. Nonetheless, the fence should not have been imperilled as it has been during construction; in design and materials, it matches other fencing at “Coorooman”, especially on the Dorchester Street frontage. The Council (unlike Mr Nimmo) does not allege there has been a breach of condition 57(iii):
“No new fence or retaining wall is to be constructed within 1,000mm of the existing timber paling fence (existing lot 18 eastern boundary)”;
this is on the basis of inconsistent information within the “conditions package”, indeed, even within the plans incorporated in the court’s order. The Council’s approach which, for present purposes, should be taken as correct, is that:
“As to an inconsistency between the approved plans and the conditions, the approval ought be construed such that the first respondent was permitted to construct retaining walls along the eastern boundary, despite condition 57(iii), by reason that:
(a)with respect to this particular issue, the approved plans are the primary means of defining the extent of the approval;
(b)the approval does not contemplate that conditions will prevail to the extent of any inconsistency between the approved plans and the conditions;
(c)such a construction places the least burden on the first respondent; and
(d)it would be impractical to enforce compliance by reason that access could not be achieved through the laundry door.”
(Matijesevic v Logan City Council [1984] 1 Qd 599, 605 supports the approach in (c).)
E. Non-compliance with condition 62 – car parking numbers & height clearance (as to numbers of car parks; the Council was prepared to prefer the approved plans, which called for two tenant car parks, to condition 62, which required three, and raised no difficulty in this regard; there is non-compliance in relation to height).
F. Site coverage.
G. Building Height.
H. Landscaping to eastern boundary (landscaping has not been provided along the eastern boundary, as required by conditions 50 and 52 and the approved plans).
I. Roof eaves (there has been a failure to comply with condition 55 for substantial parts of the roof on the eastern and western sides of the building, where overhangs of a minimum dimension of 400mm were required).
[13] The Council further contends that the four year currency period for the material change of use approved by the court’s order has lapsed under s3.5.21 of the IPA. Section 3.5.19(1)(c) made the approval effective on 12 December 2001, the date of the order. Lapse occurs under s 3.5.21 at the end of the currency period if the change of use has not happened by then. The transitional provision inserted in s 6.5.1 in 2004 effectively extended the currency period to 30 March 2006, providing for lapse on that date unless the currency period expired later. There is provision in s 75 of the Integrated Planning and Other Legislation Amendment Act 2006 to replace “30 March 2006” with “30 June 2006” in s 6.5.1(2) and (3), but the court was told that the proclamation envisaged by s 2 of the 2006 Act of the commencement of s 75 has not occurred. The decision in McDonald v Douglas Shire Council [2003] QCA 203; 126 LGERA 96, although decided upon repealed legislation, confirms that what must happen within the currency period is fulfilment of “the goal envisaged by a consent” and that some limited progress towards the erection of a building within which the use is to happen does not (as it might have under some earlier decisions) suffice. The Council’s submission is that Land One Solutions now must make a fresh impact assessable development application to it; the company is said to come under a similar obligation in respect of site coverage and building height on the basis that new assessable development is involved, precluding recourse to s 3.5.33 of the IPA to regularise the use. The original development application was made under the Town Plan for the City of Brisbane 1987 as the “transitional planning scheme”. Impact assessment is required under the South Brisbane Development Control Plan by reason of the inclusion of detached houses of height greater than 8.5 metres.
[14] A view took place on the first day of the hearing which confirmed that construction of the house on lot 12 is virtually complete. The similar houses constructed on lots 10 and 11 are complete, and occupied. Judges in Queensland have shown marked reluctance to order the demolition of construction, in contrast to what occurs from time to time in other jurisdictions (for example in Oshlack v Iron Gates Pty Ltd BC9705319, aff’d Iron Gates Pty Ltd v Oshlack BC 9800090) but on occasion orders are made; see Mudie v Gainriver Pty Ltd [2002] 2 QdR 53. Orders for demolition inevitably involve waste of resources; construction of whatever is permitted following demolition will consume more resources. Section 1.2.3(1) and (2) of the IPA may be relevant. Countervailing considerations are the adverse amenity impacts of the unlawful construction on those (notably neighbours) who have a legitimate expectation that development approvals will not be exceeded and what I regard as the important point of principle, that development approvals, as for any constraints imposed by legislation or planning schemes, must be respected.
[15] My provisional opinion, based on the affidavit material and the view, was that the site coverage aspect could and should be addressed by requiring demolition of the excess of balcony/basement roof which would necessarily remove the concrete wall rising above it on the eastern boundary, and by the opening up of the “games area” enclosed inconsistently with the Development Approval. The work required would essentially be removal of features that should not have been there. There would be no need for relocation of or even substantial changes to the eastern wall. The considerations regarding the retaining wall which Mr Nimmo contended should be a metre back from the boundary, rather than abutting it, would be more difficult to resolve. For most of the length of the common boundary, moving back from Dorchester Street, excavation to a depth of about a metre or more has occurred, leaving the “servants’ wing” appearing to be perched close to a precipice, the appearance of which is unfortunate and was probably never intended or foreseen when the consent order was made. There is here, on lot 12, a narrow access to the northern end of the property, by concrete stairs in one section, to which access is taken from the laundry; that access would be lost and adjacent windows would be compromised if restoration of the original ground level (to restore a less disturbing view of the “servants’ wing” and for other reasons such as alleviating fear about its stability) were insisted upon. Assuming that the ground level then would be some distance up the eastern wall of the new house, quite awkward works would be necessary, very likely at considerable cost. Changing the roof line to eliminate exceedence would very likely be costly, if feasible at all. The same considerations may apply to providing 400mm overhangs. Non-compliance in relation to external finishes, screens and the like could be simply rectified, one would think.
[16] The resolution of matters reached by Mr Nimmo and Land One Solutions would involve the court in requiring only limited changes. The most significant would be the removal of the concrete wall above the offending balcony at a height of a couple of centimetres (technical difficulties apparently standing in the way of cutting at floor level). The Council’s attitude, as seen, is to require the company to “make an impact assessable application to the Council … to regularise the use.” Considerations to do with planning arrangements for South Brisbane in this context lead to that level of assessment being required. The fate of any such application cannot be assured. An impact assessment process was the prelude to the 2001 appeals to the court. It is not a particularly attractive course, from the court’s point of view, to require another one, where the building is, to all intents and purposes, completed. The work required to comply with some of the conditions noted in [12] above has been deferred, pending determination of the issues in this application.
[17] It might be recorded that Mr Nimmo has been urging the Council to intervene to regularise matters since March 2005, without any success, while conceding that not all of the issues causing concern now were raised in the beginning with the Council, which wrote to Mr Nimmo on 2 December 2005:
“… Ironically, the open excavation presently appears to pose some dangers with respect to the structural integrity of the fence.
In the circumstances, and particularly given the fact of the Decision Notice of 1 February, 2005, Council does not consider that it has good prospects of being able to enforce compliance with conditions 57(iii) in Court. In any legal proceedings, the inconsistency between the wording of condition 57(iii) and the basement floor plan would be raised against Council and the Court would almost certainly enquire as to the original intent behind the condition, which, as I say, is to protect the timber paling fence. In short, legal action by Council is unlikely to be successful.
I note that also to endeavour to enforce compliance with condition 57(iii) would pose practical difficulties with respect to openings in the wall of the new building on lot 12. This is because this wall is set only 1000mm off the proposed new retaining wall on lot 12 and incorporates doors to a laundry and garage.
You may wish to seek your own legal advice in relation to the matter.
However, from Council’s point of view, the interests of the parties now appear to be best served by a practical outcome which protects the fence and your property against damage, and allows you to secure the fence against the types of hazards which you have mentioned.
Council therefore proposes to indicate to the developer of the detached house on lot 12 that, from its point of view, he may proceed in accordance with the Private Certifier’s Decision Notice issued 1 February, 2005.”
[18] Mr Nimmo got nowhere by addressing subsequent communications to the Lord Mayor using attention-grabbing headings such as “Council condones illegal development” and “Council inaction contributes to destruction of heritage property.” There were responses, of 16 January 2006:
“I am advised that this matter has been fully investigated and that the Chief Executive Officer sought advice from Council’s Legal Practice with respect to her response to you dated 2 December 2005.
As such, Council’s decision remains the same in that the developer may continue the current and proposed building works in accordance with the Private Certifier’s Decision Notice issued on 1 February 2005, as approved by the Planning and Environment Court.”
(the court has not approved the current and proposed building works) -
and 1 February 2006:
“I refer to your letter of 3 January 2006 regarding your concerns with the construction work being carried out at 36 Dorchester Street, South Brisbane.
I understand that you have been in contact with the Queensland Building Services Authority (QBSA) and they are investigating your concerns. As per your request, Council will refrain from actioning this matter while the QBSA is conducting their investigation.”This referred to “action that is founded on the Decision Notice issued by the private building certifier”.
[19] The Council’s deponent, Mr Davidson in paragraph 22 of his affidavit refers to a letter of the Council’s CEO to Mr Nimmo of 10 February 2006 which “attached a letter from Jeffrey Nimmo’s solicitor to Land One Solutions Pty Ltd dated 13 February 2006”. This comprehensive solicitor’s letter (headed “without prejudice”) lists 14 alleged offences perpetrated by the addressee under the IPA (and one under the Queensland Heritage Act) and refers to claims of damage to the applicant’s property. This is no occasion to adjudicate on the assertions made by the solicitor, but it can be said that, for the most part, they can potentially be made good. Mr Nimmo has achieved a delayed, but significant triumph in now eliciting from the Council some support for his cause.
[20] There are important policy and political considerations bearing on the extent to which the Council, where it is excluded from the process leading to a private certifier’s decision notice (and receives no income by reference to that process) should become responsible for policing what occurs in relation to it, and for the expenditure of significant resources in the process. The Council may be better resourced than members of the public, including the neighbours who are most affected. It is expecting rather a lot of them to demand that they bear the responsibility. The co-respondent here was resistant to permitting Mr Nimmo or persons looking into his interests, notably a surveyor, access to lot 12 for purposes of obtaining accurate evidence of what was being constructed, with the consequence that the court had to make an order on 7 April 2006 to permit such access. See [2006] QPEC 55. One of the difficulties in the way of the Council’s policing decision notices issued by private certifiers and construction occurring in reliance on them is that a magistrate’s order has to be obtained before Council officers may access premises. In the circumstances, policing was left to Mr Nimmo – which many may consider an undesirable situation, effective as his activity has proved. On 10 February 2006, the Council advised him “you have now raised in detail a series of further compliance issues”. Those issues the Council has now looked into, with the consequences set out above.
[21] Mr Nimmo’s application gains strength from its having an aspect of public interest associated with the heritage listing of “Coorooman” over and above his private interest as an immediate neighbour. The Council may be seen as now (belatedly) representing the public interest. Having achieved what he has in discussions with Land One Solutions, Mr Nimmo has lost his zeal to pursue his application in all its rigour. Other circumstances might arise calling for a different approach from the court; however, my view is that, here, the stance adopted by Mr Nimmo, as the person who instituted and had carriage of the application, is entitled to respect. It is not a case in which the court should take up the cudgels against Land One Solutions.
[22] Some regard may be paid to the following conclusions arrived at following the view which occurred on the first day of the hearing and by some application of ordinary experience; they are supported by evidence, including Mr Ovenden’s town planning report (which I think goes much too far in justifying everything that has gone wrong, and suggesting that nothing much out of the ordinary has happened):
· The excessive height of the roof on lot 12 does not lead to any domination of “Cooroman” or impair the vista (of roof lines in particular) from either the Dorchester Street side or from Vulture Street and points to the north.
· Retention of the Dorchester Street balcony, to the extent that it is inconsistent with the development approval constituted by the court’s order, will not unduly restrict views of or from “Coorooman”, once the wall above is cut away; it may well be that the streetscape is improved depending on the use made of the balcony, against the alternative of a large concrete driveway and visitor parking area. If used to advantage, another change on the Dorchester Street frontage, introduction of a large planter box, is likely to introduce an element of greenery to a vista of concrete, metal and glass, which would seem an improvement.
· Likewise, changes now proposed to external finishes (screens, etc) to satisfy Mr Nimmo on the Dorchester Street and eastern elevations can reasonably be seen as improvements; the significant factor is that they went to improve the amenity of “Coorooman”, which is the principal concern.
· The problematic enclosure of the bottom level at the northern end, part of the adoption of a solid or heavy design (apparently by use of painted cladding over more slender structural members), where the development approval required vertical supporting elements to be of lightweight appearance, essentially represents a source of concern for the occupants of “Coorooman”, being remote from public areas. The court is inclined to respect Mr Nimmo’s maturer view that he can live with what is constructed – which includes an apparently unauthorised concrete wall extending a couple of metres in height just inside the boundary of lot 12, where there is no paling fence. This will produce some privacy for the swimming pool area on lot 12 and for the backyard of “Coorooman”.
· The omission of 400mm overhangs is consistent with the absence of equivalent overhangs in parts of “Coorooman”, notably on the “servants’ wing”.
· Finally, as the Council submitted:
“35. As to an inconsistency between the approved plans and the conditions, the approval ought be construed such that the first respondent was permitted to construct retaining walls along the eastern boundary, despite conditions 57iii, by reason that:
a) With respect to this particular issue, the approved plans are the primary means of defining the extent of the approval;
b) The approval does not contemplate that conditions will prevail to the extent of any inconsistency between the approved plans and the conditions;
c) Such a construction places the least burden on the first respondent; and
It would be impractical to enforce compliance by reason that access could not be achieved through the laundry door.”
[23] The interests being pursued by the Council against Land One Solutions, now that Mr Nimmo has left the fray, amount to ensuring that the law governing development is complied with (a laudable exercise) by forcing the making of new impact assessable applications in relation to site coverage and height, where construction is effectively complete. There is some mystery regarding the height exceedence, part of which can be put down to what the private certifier approved, the balance of which somehow happened during construction. It cannot be said that Council knowingly turned a blind eye to what I consider serious breaches of the development approval, but it was in possession of material perusal of which would have revealed the situation. Mr Davidson’s affidavit contains the following:
“36. Exhibit GAD-16 hereto is a true copy of materials lodged with Council by Building Certification Consultants Pty Ltd with respect to the certification of building work upon the subject land. This material was lodged with Council 2 February 2005, and includes a Development Application Decision Notice issued by Private Certifier Philip Leung on 1 February, 2005.”
The material includes approved plans. In my opinion, the Council, which does not have the status of an applicant in the proceeding, may be charged with laches, that is delay which, if not blameworthy, has been prejudicial to the developer by increasing the hardship which satisfaction of the Council’s wishes might create. Of course, the developer is the author of its own predicament. The main justification presented, namely that the house on lot 12 should have as much as those on lots 10 and 11, is totally devoid of merit.
What the Council wishes to achieve is “regularising” of the improvements on lot 12, so far as they lack approval to date. This would require further application, and an impact assessment process involving public submissions consequent upon public notification, duplicating processes already gone through, except that the proposed house is somewhat bigger. In no way is the Council committed to approve any such application. There is no reason for thinking it would be rejected, or that the Council is acting otherwise than in a co-operative spirit. It is a matter of speculation whether any member of the public would be inclined to make a submission. One would not expect Mr Nimmo to do so. It is probably unlikely that any reasonable member of the public would make an adverse submission. That the works have been completed is likely to be a significant consideration for the decision maker; in the present circumstances, I would expect it to be one for any putative submitter.
[25]While the court takes seriously, as it undoubtedly should, any shutting out of the public from the exercise of rights to “involvement in decision making” offered by the IPA (see section 1.2.3(1)(f)) there is not the slightest practical attraction about committing Land One Solutions to any further applications in respect of the house being constructed on lot 12. Nonetheless, regularising of matters in respect of whatever improvements are to remain on lot 12 is desirable. If the lawfulness of improvements remains under a cloud, the value of the property would no doubt be adversely affected. This impact may be borne by future owners. The court understands that Land One Solutions is committed to a purchaser, that completion of the contract of sale is waiting resolution of this proceeding and the final steps in the construction of the house, landscaping etc.
Section 3.5.33 of the IPA is, in part:
“Request to change or cancel conditions
(1)This section applies if –
a)a person wants to change or cancel a condition; and
b)no assessable development would arise from the change or cancellation.
(2)The person may, by written notice to the entity that decided the condition or required the condition to be imposed on or attached to the approval, ask the entity to change or cancel the condition.
…
(7) To the extent relevant, the entity must assess and decide the request having regard to-
a) the matters the entity would have regard to if the request were a development application; and
b) if submissions were made about the application under which the condition was originally imposed –the submissions.
…
(9) If the entity is a concurrence agency or the court, the entity must give the assessment manager written notice of any change or cancellation.”
The Council contends that the court cannot change conditions of the Development Approval in respect of site coverage and height because doing so involves “assessable development”. Assuming that to be correct, one is driven where many roads in this court lead nowadays to section 4.1.5A:
“How court may deal with matters involving substantial compliance
(1) Subsection (2) applies if in a proceeding before the court, the court-
a) finds a requirement of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with; but
b) is satisfied the non-compliance, or partial compliance, has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by this or the other Act.
(2)The court may deal with the matter in the way the court considers appropriate.”
The scope of s 4.1.5A is still being explored. Appeals pending in the Court of Appeal (or applications for leave to appeal) may help to elucidate the limits of its application, if there are any. Decisions of this court assert an extremely wide scope for the operation of 4.1.5A. In Co-you Australia Pty Ltd v Gold Coast City Council [2006] QPEC 001, the applicant was held to have failed to comply (as it had to) with section 117 of the Coastal Protection and Management Act 1995 in respect of development applications. Judge Wilson SC said:
“[10] S 4.1.5A is expressed in very wide terms and, it has been held, should not be construed as containing limitations which are not plainly expressed in it, or apparent on its face.[1] The applicant’s concern was in part that, if its application under s 117 failed there was no process to which s 4.1.5A might be applied but the respondents conceded, properly I thought, that on the authorities now extant in relation to the section, no impediment of that kind arose.[2]
[1] Oakden Investments Pty Ltd v Pine Rivers Shire Council (2003) 2 Qd R 539 at 542-3; Ramsgrove Pty Ltd v Beaudesert Shire Council [2005] QPEC 116
[2] Ramsgrove (supra); Tancred Management Pty Ltd v Brisbane CC [2005] QPEC 035; Grant v Pine Rivers SC [2005] QPEC 036
[11] A requirement of another Act (the CPMA) has not been complied with: s 4.1.5A (1)(a); but that has not restricted, in any way, the rights referred to in ss (1)(b). Indeed, in the events which have happened, no detriment of any kind will arise. This is, in all respects, a suitable case for a grant of the relief the section provides.”
[28] It has not been necessary for counsel here to identify the non-compliance required by (a); this may be found on as broad a basis as the failure to appropriately identify site coverage and height intended in the original development application which came before Judge Quirk. For reasons inherent in what is said above, (b) is satisfied as well. It follows, in my opinion, that section 3.5.33 may be availed of, on the basis that any “assessable development” involved had been applied for all along. In my opinion the court ought to participate in the regularising exercise in the particular circumstances prevailing, rather than leave potential problems for the future.
[29]There is further work for s 4.1.5A in respect of the lapsing of the material change of use approval of 30 March 2006, assuming that no proclamation commencing the amendment eventuates. Again, the Council proposes “a fresh impact assessable application to the Council.” Dramatic as the breathing of life into an approval which has “lapsed” may seem, judges of the court have used s 4.1.5A in this way on numerous occasion. In Jewry v Maroochy Shire Council [2005] QPEC 030 Senior Judge Skoien said at [47]: “under sub section (2), I consider it appropriate to deal with the matter as if the Demolition Permit did not lapse. Consequently, the work undertaken pursuant to it was lawfully done.” His Honour may have had the latest word regarding s 4.1.5A in Metrostar Pty Ltd v Gold Coast City Council [2006] QPEC 022 commencing at [21], concluding after reviewing a number of decided cases:
“[30] Section 4.1.5A should be given a wide interpretation, not for the purpose of driving a horse and cart through the requirements of IPA, but for the purpose of allowing reason to prevail when IPA or another relevant Act has been breached. To put the matter very broadly initially one asks, “what was the breach?” Then, most importantly, “what are the consequences of the breach?” And because the law should not allow the deceitful or the greedy to profit from a breach, it is relevant to ask whether it was a wilful breach, why was it done, whether there would be a material profit from the breach, whether there has been any pain suffered by the developer because of the breach and, of course, would the exercise of the discretion in favour of the developer be likely to shut out some submitter with a legitimate case to put.”
[30] For purposes of satisfying the requirement in (a), Mr Litster made a late (oral) application under s 3.5.22 of the IPA for extension of the currency period. That application may be irregular in various respects, for technical, rather than practical purposes. On the assumption (which has found favour with at least four judges of the court) that s 4.1.5A may be invoked retrospectively to avoid the consequences of an approval lapsing, this is a case for following suit. For all the criticism of the private certification, I do not think that in relevant respects, having regard to the stage construction has reached with the Council standing by, among other things, this is a case where someone has driven a coach and horses[3] or anything else through the IPA.
[3] See Oxford Dictionary of Phrase and Fable 223 and Stevenson’s Book of Quotations (10th) 1082:[31] As foreshadowed to the parties, at the conclusion of the hearing on 5 May 2006, they now have the “green light” to enable them to proceed to work out suitable orders for presentation to the court.
“17. I will drive a coach and six through the Act of Settlement. STEPHEN RICE, Chief Baron of the Irish Exchequer, 1686
…
I can drive a coach-and-six through any act of Parliament. DANIEL O’CONNELL, Speech.”
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