Saw v. Cook Shire Council & Anor

[2008] QPEC 69

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Saw v Cook Shire Council & Anor [2008] QPEC 69

PARTIES:

STUART SAW and SALLY SAW
(Appellants)
v
COOK SHIRE COUNCIL
(Respondent)
STUDIO MANGO PTY LTD
(Co-Respondent)

FILE NO/S:

111 of 2007

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

23 September 2008

DELIVERED AT:

Cairns

HEARING DATE:

16 September 2008

JUDGE:

Everson DC J

ORDER:

1. That the Co-Respondent pay the Appellants’ costs of and incidental to the appeal so far as they relate to the issues set out in paragraph 9 of the notice of appeal on the standard basis. 
2. That the Co-Respondent pay the Appellants’ costs of and incidental to this Application on the standard basis.

CATCHWORDS:

COSTS – Where failure to comply with information request.

COUNSEL:

T. Fantin Counsel for the Appellants

D. Morzone Counsel for the Co-Respondent

SOLICITORS:

Miller Harris Lawyers for the Appellants

Miller Bou-Samra Lawyers for the Respondents

Introduction

1. This is an application in pending proceeding seeking costs pursuant to s 4.1.23(2)(g) of the Integrated Planning Act 1997 (“IPA”). Section 4.1.23(2)(g) provides that the Court may order costs for the proceeding as it considers appropriate in circumstances where the proceeding is an appeal against the decision on a development application and the applicant did not, in responding to an information request, give all the information reasonably requested before the decision was made.

The issues

1. The proceeding is a submitter appeal against a decision on a development application namely the decision of the Respondent to approve a development application of the Co-Respondent for a material change of use for multiple dwellings (four units) on land situated at 2B Green Street, Cooktown (“the proposed development”)  The submitter Appellants are seeking that the Co-Respondent pay their costs of and incidental to the appeal in so far as they relate to the issues set out in paragraph 9 the notice of appeal.

1. Paragraph 9 of the notice of appeal is in the following terms:-

“9. Inadequate consideration has been given to the ground conditions on the subject land and to the potential effect of construction of the proposed development on surrounding land.  In particular:

a substantial part of the site is constituted by granite bedrock, will (sic) also runs through adjacent properties;

the proposed development involves substantial earthworks, including an underground car park, which will require excavation and removal of the granite bedrock; and

the method of excavation and its potential to cause damage to or induce instability in structures on adjoining properties has not been adequately considered and addressed.”

1. The information request dated 23 October 2006 made on behalf of the Respondent relevantly sought the following information:-

“It is understood that the adjoining properties to the south may have required blasting to help excavate and construct the duplex.  In view of the intention to excavate the site to place the car parking at a sub-basement level, please provide details of how the excavation is to occur and what safety measures are to be applied in the event of blasting and use of heavy machinery.”

1. The response to the information request by the Co-Respondent dated 27 October 2006 relevantly stated:-

“The proponents decline to fully respond to this request.  They do not consider this to be a planning matter and that excavation in sandstone rock is a common issue in Cooktown.  Workplace Health and Safety is a matter for the builder concerned.  We note however that there are sufficient level areas on site to enable heavy machinery to operate and excavate safely.  Until excavation begins it cannot be known whether blasting will be required.  We also note that the building is designed to reduce excavation through the use of the split levels.”

1. Each of the Appellants made a separate submission.  In her submission dated 20 November 2006 the female Appellant raised a number of issues, including height, site coverage and density with respect to the proposed development as well as concerns that cutting into the existing land and granite rock on the site of the proposed development would damage the foundations and buildings on adjoining properties.  The male Appellant, in his submission dated 21 November 2006, also raised a number of height and site coverage concerns as well as concerns that granite had to be removed from the site of the proposed development which could cause damage to the foundations of buildings on neighbouring properties including his own. 

1. In an affidavit filed on 18 September 2008 the male Appellant deposed to the fact that the site of the proposed development was originally part of a larger lot owned by the Appellants on which they had built two townhouses and that they resided in one of the townhouses which immediately adjoined the site of the proposed development at the time the development application giving rise to the appeal was made.  In the course of constructing the townhouses granite was encountered which required blasting to remove.  He further deposed to the fact that it was his knowledge of the subject site and difficulties he experienced with excavation of it that led to the Appellants becoming very concerned that the need to extract granite to construct the proposed development may result in vibrations passing through the rock and causing damage to the buildings he had constructed.  He also expressed concerns for the stability of the buildings he had constructed following any significant extraction of rock.

1. Ultimately, the Respondent approved the proposed development, issuing a decision notice dated 21 February 2007. The development approval was subject to a number of conditions including condition 17 which was in the following terms:-

“A Construction Management Plan is to be submitted for approval by the Chief Executive Officer.  This plan is to detail the techniques to be employed with respect to any excavation on the site and the measures that will be put in place during the life of the construction to monitor any impacts on adjoining properties (particularly during excavation) and the remedies to be put in place should issues arise.  The Management Plan is also to detail hours of operation and of (sic) on-site management to ensure local amenity is protected.” 

It is from this decision notice that the Appellants appealed and although the grounds of appeal included other issues including height, site density and boundary setbacks, they were not ultimately pursued by the Appellants.  The Appellants engaged a geotechnical engineer, Dr Johnson in respect of their concerns set out in paragraph 9 of the notice of appeal and the Respondent engaged its own geotechnical expert, Mr Amaral.  Somewhat surprisingly the Co-Respondent did not engage a geotechnical expert. Ultimately a meeting of experts took place between Dr Johnson and Mr Amaral and a joint report was produced.  This joint report noted the presence of granite and recommended that excavation work in respect of the proposed development be supervised and monitored by a suitably qualified geotechnical engineer. Ultimately, the Co-Respondent agreed to conditions to this effect and the appeal was resolved by the addition of four conditions under the heading Geotechnical Requirements in a consent order which gave effect to the supervision and monitoring regime agreed to in the joint report.

1. In opposing the application for costs it is submitted on behalf of the Co-Respondent that its response to the information request was entirely appropriate given that information sought was properly relevant to a subsequent application for operational works or a building permit and that the information request was not capable of leading to reasonable and relevant conditions being imposed on the proposed development, pursuant to s 3.5.30 of IPA.

1. The fact that the Co-Respondent agreed to the additional geotechnical conditions and does not challenge them in circumstances where they were deemed appropriate by each of the relevant experts undermines the second argument put forward above.  The additional conditions are clearly lawful pursuant to s 3.5.30 in any event.[1]  It is also clear that the proposed Construction Management Plan set out in condition 17 of the decision notice (which incidentally remains a condition of the development approval) does not address the Appellants’ concerns to anything like the degree provided for by the additional conditions under the heading Geotechnical Requirements. The Appellants’ concerns giving rise to paragraph 9 of the notice of appeal were consistently expressed in their submissions and prosecuted through the engagement of a geotechnical expert.  This led to a resolution in this issue in the appeal by the imposition of additional conditions with respect to the construction of the proposed development.  They are entitled to feel vindicated in this regard.  They had no opportunity to be heard in respect of any further subsidiary development applications relating to the proposed development or as to the actual content of the Construction Management Plan

   [1] See Proctor v Brisbane City Council (1993) 81 LGERA 398 and subsequent applications of it.

1. On the other hand, the Co-Respondent chose to fail to relevantly respond to the information request other than to state incorrectly that it was not a planning matter and that excavation was to be in sandstone.  This latter contention was ultimately shown to be incorrect by the geotechnical experts.  At no time has the Co-Respondent engaged a suitably qualified expert to endeavour to justify its position and has ultimately agreed to conditions reflecting the view of the suitably qualified experts.

Order

1. In the course of the hearing of this application the parties sensibly agreed (I believe correctly) that a costs order should include the costs of and incidental to the costs application itself.

1. I therefore order that the Co-Respondent pay the Appellants’ costs of and incidental to the appeal so far as they relate to the issues set out in paragraph 9 of the notice of appeal on the standard basis.  I also order that the Co-Respondent pay the Appellants’ costs of and incidental to this application on the standard basis.