Parmac Property Pty Ltd v Redland City Council
[2008] QPEC 120
•24 December 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Parmac Property Pty Ltd v Redland City Council & Anor [2008] QPEC 120
PARTIES:
PARMAC PROPERTY PTY LTD
ACN 084 482 986
(Applicant)
v
REDLAND CITY COUNCIL
First Respondent
and
KOSMOS HEALTH PTY LTD
Second Respondent
FILE NO/S:
BD2537 of 2008
DIVISION:
Original
PROCEEDING:
Application for declarations and consequential orders
ORIGINATING COURT:
Brisbane
DELIVERED ON:
24 December 2008
DELIVERED AT:
Brisbane
HEARING DATE:
1 to 5 and 15 December 2008
JUDGE:
Robin QC
ORDER:
As per transcript of 15 December 2008 (applicant granted extended time to lodge submission objecting to respondent company’s current development application under consideration by Council, consequent upon declaration of invalidity of Council’s earlier changing of an existing development approval)
CATCHWORDS:
Integrated Planning Act 1997 s 3.5.24, s 3.5.33, s 4.1.5A, s 4.1.23 –
Applicant shopping centre developer objected unsuccessfully to a development application for competing shops on site predominantly designated for residential development in the planning scheme, did not appeal – respondent company (a subsequent owner of the site) obtained Council’s endorsement of a “minor change” to the development approval – proposal changed from four shops at ground level and 31 car spaces occupying the balance of the site to one in which the whole site (now substantially excavated) was made over to parking (58 spaces) and the shops (reduced in size) were raised above ground level (750 mm increase in height) – current application was for a medical centre (a separately defined use) in a new building of similar size to be constructed over the uncovered parking – applicant failed to notice advertisements during the public notification – applicant contends the changes allowed to the original approval were not minor change as defined – whether Council’s decision was therefore invalid – whether the public notification was invalid for not describing the proposal as “expansion of shops” as well as medical centre – whether public notification stage should be repeated – whether respondent company should be relieved in that regard – whether a condition should be attached to relief entitling applicant to more time to lodge a submission – apropos “minor change”, Council’s delegate put aside his concern that respondent planned further unspecified development on basis that an impact assessable application would have to be made for it, giving the public an opportunity to make submissions – held not reasonable for the delegate to hold the opinion that it was unlikely that if the original application had been advertised incorporating the changes, there would be objections – issue as to what section(s) delegate should have proceeded under – costs issues.
COUNSEL:
Gore QC and Williamson for applicant
Ure for Council
Gibson QC and Andreatidis for the second respondent
SOLICITORS:
Connor O’Meara for applicant
King and Company for the Council
McInnes Wilson for second respondent
The court determined to announce the outcome of the application (and the outcome of the second respondent’s cross application) at the conclusion of the closing arguments in deference to its own convenience and the parties’ interests in getting a decision and a statement of reasons before the 2009 court year got underway. There had been ample time during the four days of evidence and two days of submissions (those two days themselves separated by a week) for reflection sufficient to enable clear views as to the correct outcome to be reached. The ex tempore reasons given on 15 December 2008 (reproduced in the appendix to these reasons) do not do justice to the parties’ submissions as reserved reasons might have. Some additional remarks should be made, reflecting views expressed at the hearing.
Criticisms by the commercial protagonists of the other’s conduct featured prominently. Accusations were hinted at, if not “flying”, of impropriety, for example in contacts that Kosmos Health’s principal, Mr Efstathis, may have had with members or officers of the Council, and in the applicant’s alleged collateral purpose of using the proceeding to pressure Mr Efstathis to establish a pharmacy in its shopping centre, which purpose appeared to Judge Brabazon to merge from a letter penned by its real estate agent, Mr Lord. The applicant was accused of using heavy or extreme tactics in applying to his Honour to order a stop to work on the site at a sensitive time when the consequences of disruption might have been crushing. The respondent was accused of concealing its intentions and/or being misleading about them, of presuming or engineering a situation in which the Council would be placed under moral or political pressure to approve the application of 6 November 2007 because of what it had been induced to approve before and/or because of the expenditure it had made while contractors were working on the site to carry out work apt to realise stage 2, which work was not the subject of any development approval.
It should be made clear that the court has not adjudicated upon any such matters; it makes no finding about any of them; the outcome on 15 December 2008 was not affected by any of them. Speaking generally, nothing untoward appears. As for the applicant, it is far from clear that it would have appreciated just how dire the consequences of the interlocutory relief it sought might have been; it has never sought demolition of work carried out; it might have been criticised if it had not tried to stop further progress, and faced accusations of standing back while Kosmos Health dug itself into deeper trouble. I have already declined to find against Parmac any ulterior purpose vitiating its proceeding.
As for Kosmos Health, I would not criticise it for applying to the Council for whatever approvals or changes to approvals it desired. There is nothing wrong in “having a go”, even against the advice of planning consultants. I am not prepared to say there was anything sinister about the meeting set up to help Mr Efstathis work out what to do next after stage 1A was rejected. Proceeding in that way, without more, seems unobjectionable to me. Similarly, I would think it standard practice for developers who have the option to proceed without being committed to impact assessment and the attendant rights conferred on members of the public (neighbours not enamoured of their proposals, commercial competitors, etc) to pursue that option.
The court could never endorse a process of doing work first, then seeking some necessary approval. Once such illegality or regulatory is exposed, it would normally attract condemnation. However, the sad fact is that in the interests of avoiding waste, Councils are often prepared to give developers who have done the wrong thing an opportunity to regularise it by making an appropriate development application, enforcement proceedings being withheld or stayed in the meantime. One would expect the outcome to depend very much on the particular circumstances – what public interests were involved, what impacts were inflicted on neighbours’ amenity and property values, etc. – there would seem to be little of concern along those lines here – which is not to say that the delegate was justified if (which I find it somewhat difficult to accept) he thought submissions objecting were unlikely.
The ex tempore reasons reject Parmac’s argument that for stage 1B Kosmos Health was obliged to satisfy s 3.5.33, which it could not do. Assuming the Council proceeded under s 3.5.24 (contrary to what its written decision at the time stated), the decision is indefensible because it was not possible for a reasonable decision maker to find component (c) of the definition of minor change satisfied.
Liberty to apply was reserved in the order to facilitate future approaches to the court by Kosmos Health in order that its stage 2 application (perhaps changed to incorporate stage 1B) may proceed without pointless waste or replication of effort and costs to a determination on its merits by the Council – a determination in which, according to the court’s findings, Parmac is entitled to make a contribution by way of submission.
PLANNING AND ENVIRONMENT COURT
JUDGE ROBIN QC
No 2537 of 2008
| PARMAC PROPERTY PTY LTD | Applicant |
| and | |
| REDLAND CITY COUNCIL | First Respondent |
and
KOSMOS HEALTH PTY LTD
(ACN 124 192 472) Second Respondent
BRISBANE
..DATE 15/12/2008
JUDGMENT
HIS HONOUR: This is a difficult time in the Court year at which to be faced with this difficult matter. With the concurrence of the parties, rather than delay them until February next year, which would be the earliest practicable time when reasons could be prepared in support of a reserved judgment, I have decided to conclude the matter today, since my views are clear - and give ex tempore reasons which I hope will adequately expose the reasoning and enable the parties to decide whether or not things ought to be taken further.
It appears to be common ground at the Bar table that the Planning and Environment Court has jurisdiction under section 4.1.55 of the Integrated Planning Act 1997 (IPA) to enlarge the period set in section 4.1.57 for applying to the Court of Appeal for leave to appeal against a decision of this Court. That situation ought to alleviate the concern which the parties might have arising from the appeal period running from today, with attendant difficulties attributable to the holidays.
The respondent Council has under consideration an impact assessable development application in respect of which the public notification attracted no submissions. That development proposal has been described throughout the hearing as stage 2. The applicant in the Court did not see the relevant advertisements. It would certainly have objected to stage 2 should things have been otherwise. Late submitters usually get short shrift under the IPA and in the Court.
In the circumstances it's unsurprising that what is encountered is a collateral challenge to a development approval which the Council has already given by a letter of the 31st of October 2007 which refers to arrangements that have been described as stage 1B.
This is a battle between shopping centre operators in which the applicant Parmac's immediate goal is to acquire the standing of a submitter who has made a properly made submission in respect of the development application made by the second respondent, Kosmos Health, for a new use described as a health care centre in a proposed new building which, in a physical sense at least, represents expansion of its existing shops at or near the corner of Donald Road and Collins Street.
Conflicting evidence came from economic experts, Ms Bonwick and Mr Shimmir sufficient to demonstrate that a credible submission by reference to their field of expertise could be formulated.
In one of the shops a pharmacy, which represents a "shop" use rather than a "health care" one under planning scheme definitions, commenced trading on the 1st of December 2008, also the first day of the hearing in this Court. No doubt Parmac wishes to be able to commence an appeal, should the Council approve the development application for stage 2, or to defend an appeal by Kosmos Health about refusal or conditions.
Parmac has approval for a larger shopping centre in School of Arts Road, a kilometre or two away, and is well advanced in its construction. It had applied for a health care centre, among other uses. Without any explanation, for all that appears, the Council's approval omitted only that one of the suite of uses applied for. There may have been some error there which Parmac is seeking to have corrected, in my understanding. This aspect plays no part at all in the present proceeding, although it might be noted that Parmac envisages incorporating a medical centre and a pharmacy in its development.
Its land was designated for a shopping centre in the planning scheme. The planning scheme designated the corner land for similar development in a configuration which would have offered high visibility to traffic approaching from the west or south-west.
The original Kosmos Health approval, which was obtained by a company called Harridan Pty Ltd (a previous owner) follows a reconfiguration which adds to a tiny sliver of the land so designated a much larger area of "urban" land expected to go to residential development. To the underlying application made by the former owner Harridan Parmac objected, essentially on the ground that the planning scheme was recent, that it would be the wrong decision to cut across the planning intentions described. It decided not to appeal.
It is part of Parmac's stance, and perhaps has something to do with its not having noticed the advertisements during the recent public notification exercise, that its view was that the Harridan approval, which has been called stage 1, represented the ultimate development of the site which, in practical terms, wouldn't be likely to change until the proposed building to accommodate four shops reached the end of its useful life.
In the Harridan proposal, which has come to be known as stage 1, the four shops were to be provided on a slab at ground level with a leasable area of 500 square metres, the balance of the site being devoted to 31 "at grade" parking spaces. Kosmos Health purchased the site with grander plans in mind. With some assistance from its planning consultants Craven Ovenden, who refused to allow use of their firm name in this connection, it applied to the Council under section 3.5.24 of IPA in June 2007 for modification of the approval.
It proposed to cover the site with car parking, 58 places, in a basement to be excavated and to raise the approved building to accommodate parking underneath - the two and a quarter metre headroom to be provided by a combination of excavation and the raising of the shops well above ground level. There was to be a new connected building to the north to contain 281 square metres of medical centre and 178, I think it is, maybe 175 square metres for a pharmacy. Second storey offices or some kind of community meeting rooms were proposed above part of the already approved shops. The Council rejected that request which no-one contends was a minor change as contemplated in the section. That proposal was referred to as stage 1A.
The planners were prepared to support a more modest request made on the 12th of September 2007. There was no application for any new use as there had been previously. The offices/meeting rooms were not proposed, nor the second building; indeed, the area of the shops was reduced to 479 square metres but the raising of the building by three quarters of a metre or thereabouts was part of the request, as was the provision of parking underneath, indeed, over the whole site, for the same 58 car spaces.
In my opinion the changes described in the last sentence significantly, one could say fundamentally, change the stage 1 proposal. Convenient "at grade" parking is scrapped entirely; to the extent that street parking might have been available, it would be necessary for patrons to negotiate steps to get into the shops.
The conclusion was difficult to escape that the car parking applied for was excessive and could not be justified for four shops. There's nothing in the planning scheme to limit parking, but developers do not pay to provide surplus parking facilities for no reason. The conclusion was inescapable that Kosmos Health had further development of the site in mind.
The Council acceded to the request made by Craven Ovenden, advising the firm via the letter of the 31st of October 2007 of approval of that request. These were the stage 1B arrangements, as distinct from stage 1, the original approval and stage 1A, the June 2007 proposals.
The applicant's case is that the stage 1B approval was invalid. It goes on to argue that this invalidity infected the application for stage 2 which is presently before the Council, given that that application accepts as the basis of it the lawfulness of the stage 1B approval.
The appellant argues that the application for stage 1B, which was, in terms, made under section 3.5.24, ought to have been made under section 3.5.33 or perhaps ought to have been made under both sections. Section 3.5.24 is:
"3.5.24 Request to change development approval (other than a change of a condition)
(1) If a person wants a minor change to be made to a development approval, the person must, by written notice—
(a) advise each entity that was a concurrence agency that the person is asking for the change; and
(b) advise each entity that was a building referral agency, for the aspect of the application the subject of the request, that the person is asking for the change; and
(c) ask the assessment manager to make the change.
(2) The notices must be given at about the same time, and the notice to the assessment manager must include a copy of each notice given under subsection (1)(a).
(3) If the person is not the owner of the land to which the approval attaches, the request must be accompanied by the owner’s consent unless the approval relates to land that was acquisition land to which section 3.2.1(13) applied when the application for the approval was made.
(3A)If the development approval is for building work or operational work for the supply of community infrastructure on land designated for the community infrastructure—
(a)subsection (1) applies only to a person who intends to supply, or is supplying, the infrastructure; and
(b) subsection (3) does not apply.
(3B)Subsection (3C) applies if an application for the approval were made at the time the request is made and evidence under section 3.2.1(5) would be required to support the application.
(3C)The request must also be accompanied by the written agreement of the chief executive from whom evidence would need to be obtained under section 3.2.1(5).
(4)If the assessment manager has a form for the request, the request must be in the form and be accompanied by—
(a) the fee for the request—
(i)if the assessment manager is a local government—set by a resolution of the local government; or
(ii)if the assessment manager is another public sector entity—the fee prescribed under a regulation under this or another Act; and
(b)a copy of the advice given to any concurrence or building referral agency for the application.
(5)This section does not apply if the change is a change of a condition of the development approval."
Section 3.5.33 is:
"3.5.33 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.
(3) If the person is not the owner of the land to which the approval attaches, the request must be accompanied by the owner’s consent.
(3A)If the development approval is for building work or operational work for the supply of community infrastructure on land designated for the community infrastructure—
(a)subsection (1) applies only to a person who intends to supply, or is supplying, the infrastructure; and
(b) subsection (3) does not apply.
(3B)Subsection (3C) applies if an application for the approval were made at the time the request is made and evidence under section 3.2.1(5) would be required to support the application.
(3C)The request must also be accompanied by the written agreement of the chief executive from whom evidence would need to be obtained under section 3.2.1(5).
(4) If the entity has a form for the request, the request must be in the form and be accompanied by the fee for the request—
(a)if the entity is a local government—set by a resolution of the local government; or
(b) if the assessment manager is another public sector entity—the fee prescribed under a regulation under this or another Act.
(5) The entity must decide the request within 20 business days after receiving the request.
(6) The entity and the person may agree to extend the period within which the entity must decide the request.
(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 s 3.5.33A 214 s 3.5.33A Integrated Planning Act 1997
(b) if submissions were made about the application under which the condition was originally imposed—the submissions.
(7A) Also, if a building referral agency gave advice about an aspect of the application the subject of the request, the entity must have regard to the opinion of the agency about the change before deciding the request.
(8) The entity must give the person written notice of its decision.
(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.
(10) The changed condition or cancellation takes effect from the day the notice is given to the person.
(11) Subsections (5) and (6) do not apply if the entity is the court."
It is a vexed issue how the two sections are to be reconciled.
See Fogg, Meurling and Hodgetts, Planning and Development Queensland [4315] ff and [4560]. 3.5.24(5) would suggest that they are independent provisions which don't overlap, perhaps giving primacy to section 3.5.33, which deals with changing conditions, as opposed to the approval. Things are complicated by the general practice of local governments of issuing approvals to incorporate almost everything under the heading, "Conditions."
The leading condition is likely to be that the development proceed in accordance with identified plans. Where that happens, should the developer wish to change the plans there is, virtually by definition, going to be a change of conditions.
In Bartlett v Brisbane City Council [2003] QPELR 56, Judge Brabazon observed that the case was one under Section 3.2.24 because what was being changed was the thing itself, the outcome which the developer hoped to achieve, rather than conditions, that his Honour's observation at 58 picks up, almost word for word, a statement of Pincus JA in Ecovale Pty Ltd v Gold Coast City Council [1999] 2 QdR 35, at 42.
Oddly, the Council's letter indicated that the request had been processed under Section 3.5.33, and that was certainly not what Kosmos Health, or its consultants, had asked for. There's a plethora of forms made available for players in the development industry which place a premium on identifying IPA provisions and others, which are invoked. It may be the practical requirement to do what those running the system require rather than any IPA provision which requires developers to nail their colours to the mast by nominating a section.
It is asserted by the Council officers involved, Mr Appleton and Mr Wilson, the latter particularly, that the assessment task undertaken was one which at all times had Section 3.5.24 in mind. The suggestion was that some misunderstanding by another Council employee led her to refer to the wrong section in the Council's formal advice. It was potentially troubling that the Council produced a revised advice on the eve of the hearing in this Court referring to the correct section. I do not regard that as an attempt to shut the Court out of considering the Parmac's arguments; rather, it seems to me, on reflection, it was an attempt to regularise the situation by correctly recording what had happened.
Section 3.5.33 will not assist Kosmos Health, if only because assessable development by the excavation and the raising of the shops was involved: Hayday Pty Ltd v Brisbane City Council 2006 QPELR 40.
Nonetheless, it is Parmac's case that Section 3.5.33 did apply because a change of conditions was sought here. Its argument was underlined by a late reference to Section 3.5.32(1)(a) of the IPA whereby a condition must not be inconsistent with a condition of an earlier development approval still in effect for the development. I took the suggestion to be that the stage 1B conditions were inconsistent with the stage 1 conditions because different plans were referred to in the leading condition. That approach seems to me to make a mockery of the facility which the IPA offers developers to have conditions changed. If the March 2007 approval obtained by Harridan has its conditions changed, then it would appear to me that the approval with changed conditions completely supplants the original one.
Some means has to be found of reconciling Section 3.5.24 and Section 3.5.33. There has been much reference, particularly by Mr Gibson, to High Court authority expounding approaches to statutory interpretation where such difficulties are encountered, to cases such as Project Blue Sky, Inc v Australian Broadcasting Authority (1998) 194 CLR 355, and Mills v Meeking (1989) 169 CLR 214.
The Court in my opinion should not lose sight of its responsibility to advance IPA's purpose which by section 1.2.3(1) is to ensure that decision-making processes are accountable, coordinated and efficient. What was sought by Kosmos health in stage 1B was a change to the outcome looked for by the developer or owner.
In that context I am inclined to give priority t the section which Cosmos and advisers selected, 3.5.24, and regard the impact on conditions of the existing development approval as something incidental rather than controlling.
I am of the view that the relevant difference may lie in that between those things which the developer wants to achieve on its site and the conditions which are the restraints, limitations and burdens of various kinds which the Local Government or some concurrence agency may want to impose on the development.
My conclusion is that Parmac's case is not persuasive that section 3.5.33 was the important one. Nonetheless, we have a situation in which assessable development is applied for in stage 1B in a process from which the general public are excluded.
That may have some bearing on the way in which "minor change" in section 3.5.24 is to be understood. There is a schedule 10 definition of "minor change" which effectively should be substituted for that expression in section 3.5.24. The definition is this:
"Minor change, for a development approval, means a change to the approval that would not, if the application for the approval were remade including the change—
(a) require referral to additional concurrence agencies; or
(b)cause development previously requiring only code assessment to require impact assessment; or
(c) for a development requiring impact assessment—be likely, in the assessment manager’s opinion, to cause a person to make a properly made submission objecting to the proposal, if the circumstances allowed."
That definition explains the constraint upon the assessment manager's acting favourably to accept a developer request under section 3.5.24 which may be seen as corresponding with the constraint in terms of assessable development not being involved which applies under section 3.5.33.
The constraints spelt out in the two sections should be taken seriously. They permit development approvals to be changed or the conditions of them changed without the general public being given any opportunity to have a say even if the underlying development application was impact assessable.
Under section 3.5.24, which may lead to the approval (rather than the conditions of it) being changed, the control is that the change must be minor change, the test of which depends upon the likelihood of a submission being attracted by the change and is to be applied by the assessment manager.
The underlying control is the public's attitude or, more correctly, perhaps, how interested members of the public might react. The assessment manager's opinion regarding those aspects is what counts, not the reality, nor the Court's opinion. It is accepted that the assessment manager's opinion is not beyond challenge. This is, however, not a case like Hayday Pty Ltd v Brisbane City Council [2006] QPELR 261, the sequel to the earlier Hayday case, in which the Court's opinion about the likelihood of a submission objecting to a changed development proposal is what matters. That the Court's opinion and the assessment manager's opinions may be diametrically opposed does not entitle the Court to substitute its view.
The test which, it's common ground at the Bar Table, should be applied is known as the Wednesbury test. So far as is known, it is yet to be applied under section 3.5.24 to vitiate the determination of an assessment manager or an assessment manager's delegate like Mr Wilson. The test as formulated by Lord Greene MR in Associated Provisional Picture Houses Limited v Wednesbury Corporation [1948] 1KB 223 at 239 to 230 was in terms that: "There may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority."
A more modern and perhaps more lawyerly exposition appears in Foley v Padley [1983] 154 CLR 349 at 352-353 where Gibbs J said: "When a power to make by-laws is conditioned upon the existence of an opinion it is the existence of the opinion and not its correctness which satisfies the condition. However, that does not mean that an exercise of the power is immune from challenge." He went on to quote Sir John Latham in the R v Connell; ex parte Hetton Bellbird Collieries Ltd case to this effect: ..."Legislation conferring the power is treated as referring to an opinion which as such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts...It should be emphasised that the application of the principle now under discussion does not mean that the Court substitutes its opinion for the opinion of the person or authority in question..."
In the exercise of contemplating what objections might be foreseen as likely there are some constraints. In a passage which has its counterparts in other decisions, Judge Wilson SC said in Ryan v Brisbane City Council [2005] QPELR 544 that: "It is fair to assume that the hypothetical potential objector would take a rational view of the matter."
That, in my opinion, is not to say that only objections with a high or reasonable prospect of being successful should be contemplated. In this case, Mr Wilson was faced with a change which converted a single storey proposal to one that some might see as a two storey one, although the parking was essentially to be in the basement. He had some awareness of the June proposal and I think had been on the committee which correctly determined to reject it. He accepted that it was clear Kosmos Health had some further development in mind. If I haven't make it clear already, in the Stage 1A proposal the pharmacy, which is now occupying one of the four existing shops, was proposed to be located in the new building adjacent to the medical centre. Mr Wilson understandably took refuge in the knowledge that if any further use, such as a medical centre, was applied for for the site, that would be by impact assessable processes involving public notification. Likewise, any expansion of the approved shopping centre use, on his approach, would also require public notification.
It seems to me he accommodated that whole aspect of submissions potentially coming in from the public by taking comfort in the processes he expected to be gone through in the future before there could be any further development.
A considerable amount has been said about Brisbane City Council v. Cunningham (2001) 115 LGERA 326 in which I have a particular interest as the erring primary Judge who inappropriately discerned a "Pioneer" point in the circumstances. Cunningham establishes that there is no Pioneer point here.
It's not possible to attack any approval obtained or application made by Kosmos Health on the basis that the company is pursuing some grander plan not spelt out in the application documents. The decision establishes that a developer may pursue separate applications, whether made contemporaneously or in sequence, in respect of the same land.
In Cunningham, the football club had before the Council two development applications: one impact assessable - to which Mr Cunningham, a neighbour, was entitled to object, and one application which was code assessable so that he could not object in respect of it. He feared that the club was getting its foot in the door, so to speak, getting parking and associated arrangements approved as an adjunct to a swimming pool proposal, which parking was also (and maybe primarily) intended to facilitate the redevelopment and expansion of the club with its restaurant, bar and gambling facilities and the like.
The Court of Appeal found Mr Cunningham's concerns understandable but also found they lacked legal merit.
That conclusion does not, to my mind, bear on the likelihood of a person making a properly made submission objecting to a change to a development approval. Whether a submission is properly made depends on the process followed, not on the merits.
Accepting that there could be properly made submissions (it being presupposed that they are relevant submissions) which are irrational or outlandish, for example, one based on a ground that all development was bad and should be opposed, I think that the present circumstances are ones in which no reasonable assessment manager could reasonably reach the opinion that the change to the parking provision would not be likely to cause any person to put in a properly made submission.
It was not possible or reasonable to avoid the question why so much was parking had been provided in the way proposed in stage B when the GFA of the shops was being reduced. It's difficult to think of any explanation other than that the developer has further plans to the site and it would be reasonable for any member of the public or the assessment manager, if it comes to that, to want to know what they were. Even if, in the long run, that interest is determined to be irrelevant as a matter of law, the Pioneer-type point here does not go to the validity of any application or approval but to the likelihood of a submission being made.
In the circumstances then, I am persuaded that section 3.5.24 wasn't available to Kosmos Health and that the Council's determination that it was so unreasonable that should not be allowed to stand.
I accept Mr Gibson's submissions about the great care that has to be taken in applying the complicated definition of minor change in schedule 10. A good deal of exercising of the imagination is required including, at the outset, imagining that the application for the approval, meaning here the Harridan application, "were remade including the change".
As is known, Parmac and another company with some connection with its shopping centre in School of Arts Road were the only submitters.
In my opinion, their submissions are - or Parmac's, at the least, would very likely have been different in the hypothetical scenario the Court has to consider.
I would expect complaint to have been made on the basis of the otherwise unexplained excessive parking provision. It's a difficult question whether, Parmac having been a submitter, the Court's entitled to imagine that it would have put in a different or better submission.
I accept that for present purposes it's beside the point that it might have determined to appeal if the original planning approval had included stage 1B. I'm inclined to think that the Court is entitled to ask about different submissions that actual submitters might have made. Even if that's not the case, I think the Council delegate got things sufficiently wrong to satisfy the Wednesbury test by proceeding on the basis that it was not likely that anyone else would have put in a properly made submission if knowing about stage 1B.
I've already betrayed my thoughts about the difference which I think exists between shops with parking at grade and shops with parking only underneath.
In my view it follows from the conclusion that the delegate went unreasonably wrong in his decision that the approval of the 31st October 2007 cannot stand and that the stage 2 development application, and in particular the public notification thereof, is vitiated as well.
It postulates a starting point of the split level shopping centre.
An interesting aspect of the history is that Kosmos Health has taken the risk of carrying out assessable development on the site in anticipation of stage 2 being approved. I don't say that things have got to the stage where the Council's ability to decide what it has to is compromised by the things that have happened, a separate question from whether or not a rational member of the public might put in a submission.
Load-bearing walls and pillars have been designed and to an extent constructed. I think Mr Gore's correct that, at least now that it is viewed with the advantage of hindsight, the stage 2 application, shorn of the support of the stage 1B approval, has been misrepresented as one seeking nothing more than a new medical centre. It is one for that but also extension of shops.
If it matters, I think there's a strong argument that the increased parking provision in itself represented an intensification of the use of shops and in that regard I accept the evidence that the planner, Mr Brown, gave.
I've already referred to subsection (1) of section 1.2.3 of IPA. Reference might also be made in a context such as the present application to 1(f) in terms of providing opportunities for community involvement in decision making. The foregoing reasons will make it clear that I think councils ought to be astute to keep that purpose of the IPA in mind in determining applications under section 3.1.24, and conscious that they are permitting a different development without giving the general public a say. As a practical matter, the court's concerns might have been alleviated to some extent had the council enquired about the attitudes of the submitter for the Harridan application
While arguments may possibly be open that there's something wrong with the stage 2 development application, itself, the applicant, as I understand things, doesn't make any claim along those lines and I've been loathe and extreme to contemplate them, anyway.
It may seem to follow, however, that the stage 2 application should be sent back to the public notification stage. From the Court's point of view, that's unattractive. It involves a costly repetition of effort and delay.
Against the possibility of an outcome along those lines, Mr Gibson has sought relief under Section 4.1.5A of the IPA. I am willing to make an order for such relief but it would be on the basis of the outcome in Kunapipi Springs Pty Ltd v Whitsunday Shire Council (2006) QPELR 727. Senior Judge Skoien reached an outcome (which it seems to me would be a fair and just one now in light of the Court's basic conclusions) whereby public notification didn't have to be repeated but a rival developer had time extended for making a submission in objection. The problem with public notification there was that the longer period provided for in the IPA for public notification hadn't, in fact, been made available.
There was some discussion as to whether the Court was entitled to impose relief under Section 4.1.5A on a party not seeking it. It seems unnecessary to pursue that aspect but I remind the parties of the undertaking that I gave before lunch to make further findings or rulings on legal matters that they might require.
Mr Gibson made some submissions this morning by reference to cases such as Great Life v Brisbane City Council regarding discretionary factors. He noted that even in an interlocutory proceeding determined by Judge Brabazon QC, Parmac had not sought the demolition of any works actually done. His Honour had before him a powerful body of evidence as to the dire impact which any order of that kind might have on Kosmos Health and those behind it.
It was said to follow that a sound exercise of discretion might require the withholding of declaratory relief on the basis that it would be without effect in the real world if no orders were made about things to be done or not to be done. There is some unattractive circularity in that approach, to my mind. The Court has, in planning matters in particular, a discretion to withhold relief of a declaratory nature. I am not persuaded that this is the occasion for doing so. We are in a context, which I hope and expect won't be encounted too frequently, where a collateral avenue of challenge is available.
I perhaps ought to say that in the event that Kosmos Health doesn't want relief under Section 4.1.5A which would come with the doubtless unwelcome relief for Parmac which I have described, it may well be that the appropriate relief for the Court to grant is more wide-ranging declarations of invalidity, extending to the Stage 2 application itself, which might effectively be forced back to an earlier IPA stage than public notification.
Mr Gibson had two additional applications. One sought a stay of Parmac's application on the basis of it being an abuse of process of the Court. This was based on Judge Brabazon's disapproval of a letter written before the return date of the application, which bluntly communicated the view that Kosmos Health could avoid protracted legal proceedings by the expedient of one of its principals, Mr Efstathis, taking premises at the School of Arts Road development for a pharmacy.
The letter written by the agent which gave various contact numbers concluded, "We would welcome the chance to resolve this today before Court tomorrow."
His Honour said:
"The reference, of course, was to the present proceedings. The principle which is important, it says, 'Legal proceedings are not to be used for a collateral purpose and if they are is an abuse of legal process.' It is true that large parts of Mr Lord's letter in effect amount to appropriate suggestions but in my view he stepped over the line in making the remarks which I have quoted. The letter would no doubt be understood by Mr Efstathis as a threat to continue legal proceedings against him if he did not accept the offer and that it was just not an offer of settlement. The letter shows here that the proceedings are not just those taken by a competitor which could not be criticised but were at least at the time the letter was written as part of the strategy to get Mr Efstathis as a tenant."
After delivering those reasons his Honour was asked by
Mr Lyons QC, then appearing for Kosmos Health, to reserve costs, which his Honour did because, as he said, it couldn't do any harm.
Mr Gibson has abandoned the stay application now that he is provided with appropriate assurances from Parmac that Mr Efstathis is not being pursued as a tenant - as I understood things that wouldn't be accepted as one. So, if there were an improper purpose, it is no longer being pursued. What the Court is now asked to do on that application by Kosmos Health is grant, on an indemnity basis, to Kosmos Health, the costs which his Honour reserved.
Mr Gore accepts that it is not a sufficient answer to the application to say that Judge Brabazon was making no more than an interlocutory determination in deference to Castillon v. P & O Ports Limited [2007] QCA 264, in particular at paragraph 49 and following, and to Makhoul v. Barnes [1995] 60 FCR 572 at 582 - 83.
As I read his Honour's reasons, notwithstanding his clear disapproval of an aspect of Mr Lord's letter, many other factors influenced the outcome of the proceeding before him. It seems to me the officers of Parmac itself haven't taken, (perhaps haven't had, and shouldn't have taken in the circumstances of the valuable Court time and resources involved in all the circumstances) the opportunity to present another view.
It seems to me that his Honour's views were provisional and based on knowing part only of the picture. I don't see any significance in the reservation of costs.
I am not persuaded that reserved costs ought to be awarded to Parmac in the circumstances. Cases such as Williams v. Spautz (1911) 174 CLR 509 indicate to me that what matters is that a litigant is using court processes in supposed pursuit of relief which he doesn't really want but to secure some other outcome which he does want which the court, by its ordinary processes, would not make available.
I am not persuaded that Parmac is anything less than totally serious about pursuit of the relief described in its application.
If asked to decide where the reserved costs should fall, I would decline to make any order about them. I appreciate that I am less well apprised of the circumstances than was his Honour and I wouldn't be upset if Mr Gibson wanted an opportunity to battle out the matter before him.
The other application concerns the costs of obtaining the evidence of Mr Olsen, an expert botanist. He came into the matter to deal with allegations that there was something wrong with the Harridan approval because of the failure to involve a referral agency on the basis of proximity of the development site to some vegetation.
The point has a rather technical aspect as the development was always to be separated from that vegetation by a new road which, in fact, is there now.
Mr Olsen has taken a belt and braces approach demonstrating that the mapping relied on may not be reliable and that even if reliable, the mapping doesn't demonstrate sufficient proximity of the vegetation in question, assuming, for argument's sake, that vegetation of significance is there somewhere near the development site.
The application for costs of obtaining Mr Olsen's report is based on section 4.1.23(2)(b) of the IPA. My experience in the Court tells me that it's common for issues of this kind to be raised as the litigants attempt to cover all bases. My experience tells me that often those issues go away and although I have made some orders for costs myself in arguably similar circumstances, it wouldn't be a proper exercise of discretion, assuming the Court has one in this instance in relation to the obtaining of the Olsen evidence, to make the costs order, so I decline to do it.
...
HIS HONOUR: The Court:
declares that the stage 1B approval notified in the
respondent's letter of 31/10/07 is invalid and should be set aside;
declares that the public notification of Kosmos Health
Pty Ltd's development application for a health care centre lodged 6th of November 2007 is defective;
extends time for the applicant Parmac Properties Pty Ltd
to make a submission in respect of that development application until 15 business days as defined in the Integrated Planning Act and the Acts Interpretation Act after the latest of:
(a) the second respondent advising it in writing that it
does not intend to change the development application;
(b) 30th of January 2009;
(c) the second respondent's advising it in writing of
all changes desired to be made to the development application.
orders the second respondent to formulate any desired
changes to its development application and notify the applicant of them by the 30th of January 2009;
liberty to apply and in particular to the second
respondent to apply for orders to facilitate amendment of that development application in light of the declarations made by the Court
...
HIS HONOUR: I'll dismiss the two costs applications made by Kosmos Health, the second respondent, decline to make any order about the costs reserved by Judge Brabazon on 7th of November 2008 and reserve the applicant's costs from 28th of November 2008.
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