Rofail v Wells

[2011] QPEC 107

[2011] QPEC 107

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 2213 of 2011

MAGED ROFAIL

and

SABINA MANUELA ROFAIL

and

ROFAIL GRANDCHILDREN FUND PTY LTD

Applicant

Applicant

Applicant

and

AMANDA JANE SACRE WELLS

Respondent

BRISBANE

..DATE 22/07/2011

..DAY 1

ORDER

CATCHWORDS

Sustainable Planning act 2009 s 245, s 456 Integrated Planning Act 1997

Application for summary dismissal of originating application seeking declaration certain work is unlawful for breaching conditions of a reconfiguration - factual issues as to equivalence and location of replacement drainage pipes may lurk - whether the work constitutes exempt development which could not be complained of - matter sent to callover, as parties not ready to argue legal or possible factual issues

- court's preference to have Council (not a party) involved
HIS HONOUR:  The court makes an order in terms of the initialled draft.

It's a matter of some regret that it seemed inappropriate to determine finally the respondent’s application within the applicants’ originating application.  The originating application seeks declarations that certain work the respondent has done is unlawful.  The respondents effectively seek summary dismissal of the originating application.  The court can only sympathise with their understandable desire to be quit of this proceeding which they (being the respondent and her husband) face as ordinary householders whose actions in relocating some underground piping along the back boundary of their new property to facilitate the construction of a swimming pool have brought this proceeding upon them.

The applicants have more of an interest, being associated with the development of the entire estate including what's now the respondent’s lot in Pontiac Street. They proceed seeking declarations under section 456 of the Sustainable Planning Act 2009 as owners of Lot 32 which is the one sharing a rear boundary with the respondents' Lot 39.

The pipes in question feature in the council's approval permitting the reconfiguration.  The purpose of them is to receive water collected from the roofs of residences whose eventual construction on Lot 32 and its neighbours was anticipated.  The flow through that pipe was then to be conveyed through other piping at right angles some further distance to Pontiac Street.

Mr Fynes-Clinton's challenge to the originating application is based on what his clients did, namely removal of existing 250 millimetre diameter piping to permit construction of the swimming pool and its replacement by double 150 millimetre pipes, constituting exempt development even if the interference occurs with operational work it carried out pursuant to a development approval or approvals.  It's submitted that the court has no jurisdiction in such a matter, that nothing can be pointed to and nothing in particular has been pointed to by Mr Haydon to regulate the situation in ways that make the respondent’s actions, which I think it's conceded are "development" or could possibly make it - unlawful.

The council's documents do show a representation of the piping in question.  Mr Fynes-Clinton concedes that there are factual issues lurking here, in particular whether the replacement of a single pipe with two smaller diameter ones has any impact on the capacity or efficiency of the system and whether, as the applicants may contend, the pipes now there are in the right place or perhaps are in part on Lot 32, encroaching there.

The respondent is seeking indemnity costs at least from the date of a letter of July the 8th this year which, in strong terms, makes the respondent's point.  I don't wish to say anything that would stand in the way of that application for costs succeeding if, at the end of the day, Mr Fynes-Clinton's argument, by which I mean the legal argument that he makes today on the basis that the factual issues referred to don’t matter, ultimately succeeds.  The applicants have fair notice of where they may stand in respect of costs.

It seems to me that for the court to dismiss this proceeding out of hand Mr Fynes-Clinton would have to satisfy something like the test in General Steel Industries Inc v Commissioner for Railways (New South Wales) (1962) 112 CLR.

Reference to section 456(1) indicates the apparent width of the declaration discretion; paragraph (b) relates to declarations about construction of the Act, planning instruments and various guidelines. Mr Fynes-Clinton conceded that if his client wanted a declaration that her development was exempt she could use that provision. Mr Haydon hasn't risen to the challenge of presenting chapter and verse in support of his client's contention that interference with operational works done under an approval which still has some life in it, as the whole reconfiguration project is still ongoing, is problematic, but his originating application seems to me, on the face of things, to satisfy the description of a proceeding about "the lawfulness of land use for development" as set out in paragraph (d).

My general impression is that the law in respect of the extent to which development approvals and conditions in them by reason of s 245 of the Sustainable Planning Act 2009 (formerly s 3.1.28 of the Integrated Planning Act 1997) bind subsequent owners, particularly those who may not have notice of certain matters, is relatively undeveloped and can't be said to be certain. See for example Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472.

The consequence is that today's hearing, which has taken a considerable amount of time, results in Mr Haydon's proposal being the one that's accepted.  In the interests of saving costs it had been hoped that a fixed date in the August sittings, which would have to be very late, could be allocated to the matter but that's not possible.

There's no time available currently in the only week that would be feasible given that the parties are waiting for the council to comply with the notice requiring third party disclosure, so the matter has to go on the callover.  It seems to me not necessary to inflict on the parties the requirement to participate in any pre-callover review.

I'm firmly of the view that the council ought to be brought into this matter in a more serious way than as a respondent to an application for disclosure and accordingly am requiring the parties to serve the council with copies of their respective applications and supporting material together with notice of this order to give the council an opportunity to intervene.

Part of the applicants' concerns is that they may face difficulties with the council should it be concerned that what the respondent has done creates problems so far as future approvals are concerned.

The respondent has made inquiries of the council and indeed others and expresses confidence that there will be no such issues.  It's not especially clear that that is the situation and statements to the court by council may well help enormously.

So, order as per initialled draft.

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