Shadbolt v. Maroochy Shire Council
[2006] QPEC 113
•6 November 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Shadbolt v Maroochy Shire Council [2006] QPEC 113
PARTIES:
Maroochy Shire Council
(Appellant)
v
Norman William Shadbolt and Noel Shadbolt
(Respondents)
FILE NO/S:
No. 22 of 2006
DIVISION:
Planning and Environment
PROCEEDING:
Appeal from Building and Development Tribunal
ORIGINATING COURT:
Planning and Environment Court, Maroochydore
DELIVERED ON:
6 November 2006
DELIVERED AT:
Brisbane
HEARING DATE:
12 October 2006
JUDGE:
McLauchlan QC DCJ
ORDER:
Appeal allowed; Matter remitted to Building and Development Tribunal
CATCHWORDS:
Appeal to Building and Development Tribunal; application of ss3.5.4 and 3.5.13 IPA; “common material”; whether error of law in referring to Supreme Court litigation in which respondents had engaged.
COUNSEL:
Mr Williamson for the Appellant
Mr Fynes-Clinton for the Respondent
SOLICITORS:
Maroochy Shire Legal Services for the Appellant
IPA Law for the Respondent
On 8 July 2005 the respondents made a development application to the appellant for a preliminary approval for a boundary relaxation for the “existing pool and shade cloth structures” that were “currently within the minimum setback area” on the subject land which was lot 4 SP 120415 and part of lot 46 on C31729. The application was forwarded to the council by the Livingstone Group under a letter dated 13 July 2005 which stated, in part:-
“Our clients Mr and Mrs Shadbolt have requested that we prepare a boundary relaxation application in order to resolve the issue of an encroachment within the 1.5 m setback area by a swimming pool and shade cloth enclosure constructed in 1998. The encroachment has been the subject of court proceedings between our clients and agents representing Mr Wise’s estate. The Supreme Court subsequently ordered that the area of the encroachment over the boundary be transferred from Mr Wise’s property to our client. This has taken place through the approval of the boundary realignment application (Council ref: REC034/0197). Subsequently, this second application is being lodged to gain a relaxation between the pool and shade cloth and the newly approved boundary.”
The respondents were the owners of lot 4 on SP120415 and the swimming pool and associated structure encroached upon the adjoining lot 46 on plan C 31729 to the extent of 47 square metres. Lot 4 is part of a community title scheme under the Body Corporate and Community Management Act 1997. The swimming pool and enclosure was constructed in late 1998.
When the encroachment was discovered the respondents applied to the Supreme Court of Queensland for relief pursuant to s 184 of the Property Law Act 1974. The court ordered, in October 2002, that:-
“Subject to all necessary consents from Maroochy Shire Council and Greatwood Community Title Scheme 19855 being obtained within six months of the date of this order, the respondent (Frank Wise) transfer to the applicants (the respondents to this proceeding) the fee simple interest in land over which the encroachment extends (“subject land”).
The expression “necessary consents” in the order was apt to include a consent to an application for a relaxation of the site boundary setback requirements under the planning scheme, the planning scheme providing for a setback of 1.5 m from the boundary as an “acceptable measure” with respect to Performance criterion P2 of “Element (2): Building Design and Site Development” of the Code for Development on Steep or Unstable land. It is argued that this requirement of the code may not have applied to the pool and enclosure, which perhaps is more accurately regarded as a “structure” than as a “building”. However the application was made by the respondents, who can now scarcely be heard to say, for the purposes of this appeal, that the application was not the appropriate one in the circumstances.
The application was code assessable and was assessed against the following applicable codes:
(a) Code for the development of detached houses and display homes;
(b) code for development on steep and unstable land; and
(c) code for extraction, excavation and filling.
Contrary to the recommendation of the Council’s planning officer the Council on 26 October, 2005 resolved to refuse the application. This refusal was communicated to the respondent’s solicitor by way of a decision notice dated 26 October, 2005. The decision notice recorded the reason for refusal as follows:-
“The proposed development does not comply and cannot be conditioned to comply with element 2, performance criteria P2 (of the code for development on steep or unstable land).”
On 23 November, 2005, the respondents appealed to a Building and Development Tribunal against the Council’s refusal. The appeal was allowed by the tribunal by decision dated 10 September, 2005, which approved the application subject to conditions. It is this decision which is the subject of the present appeal.
The reasons for the decision are stated as follows:-
“●The swimming pool and structure have been the subject of a Supreme Court ruling that the boundary be realigned to coincide with the edge of the pool structure. To now require the swimming pool and screened enclosure structure to be setback from that boundary would make a futility of the Supreme Court decision.
●The location of the swimming pool has the potential to create some overlooking on to lower areas of the adjoining land, however this will only be by someone standing on the very edge of the pool. I do not consider that the potential impacts on privacy are a significant problem.
●The enclosure is a substantial structure which, because of its height, exacerbates the visual impact of the pool structure when viewed from the lower parts of adjoining properties. While it is constructed of light weight mesh material (with a solid frame), it nevertheless has an imposing visual impact when viewed from below. I consider that the potential impacts on views and outlook for future residents of the adjoining land will be significant, but can be mitigated by removing the upper parts of the screened enclosure.
Conditions of Approval:
(1)The screened pool enclosure is to be limited to the existing waist high (approximately) pool fence only. The mesh screen roof and walls above that height are to be removed.
(2)This approval is for the boundary setback (siting variation) only, and does not authorise building works to occur. Separate building works approval may be required.”
The tribunal’s findings of fact refer to the fact that the survey plan required for the transfer of the land from the owners of lot 46 to the respondents has yet to be sealed by the Council, as the reconfiguration approval includes a condition that “building setbacks and site boundary clearances (are) to comply with the Building Act”. It is not contested that compliance with the setback requirement already mentioned in relation to performance criterion 2 of the abovementioned code would be a sufficient compliance with that condition.
The findings of fact also include the following:-
“●Given the background to the boundary realignment (effected by the reconfiguration approval) it is impractical to require the setback to be achieved, as to do so would require removal of the pool. It is the pool that was the subject of the Supreme Court proceedings referred to above.
●The Council has refused the application on the basis of alleged non-compliance with performance criterion P2 of the code for development on steep or unstable land. That criterion provides that: buildings and other structures must be designed and sited to minimise adverse impacts on the amenity of neighbouring sites with regard to ensuring acceptable:
●natural light and ventilation;
●views and outlook;
●privacy
●It was agreed on site that “natural light and ventilation” was not an issue in this case, but that “views and outlook” and “privacy” were concerns for the Council, especially for the future residents of the adjoining site when it was developed as anticipated by the planning scheme.
●Given the history of this particular pool, including its encroachment on to the adjoining property and the subsequent court decision, it does not seem reasonable or practical to require the existing pool to be setback further from the newly created boundary.”
The tribunal then states that based on its assessment of the facts the appeal is upheld. “Council’s decision to refuse the application for building works – siting variation – is set aside and the application is approved subject to conditions in accordance with the reasons for decision quoted above”.
The appeal to this court is made under s 4.1.37 IPA. It is accordingly necessary for the appellant to show an error or mistake in law on the part of the tribunal, or that the tribunal had no jurisdiction to make the decision or exceeded its jurisdiction in making the decision. The ground of appeal in the present case is that the tribunal made an error or mistake in law. More particularly, it is said that the tribunal, in assessing and deciding the application had regard to irrelevant considerations, namely that a refusal of the application would make a futility of the Supreme Court order of 31 October 2002, and that a refusal would require the respondents to undertake certain works to achieve the required setback from the relevant property boundary. Secondly it is said that the facts found by the tribunal with respect to views and outlook, as a matter of law, caused the application to be in conflict with the Code for the purposes of s 3.5.13(3) IPA. In consequence of that the tribunal was required by the section to have regard to the purpose of the code and determine, as a matter of fact, whether there were enough grounds to justify approving the application despite that conflict.
For present purposes s 3.5.4 IPA provides that the assessment manager must assess the part of the application requiring code assessment, only against applicable codes and the common material. Section 3.5.13 provides that the assessment manager must approve the application if the assessment manager is satisfied the application complies with all applicable codes whether or not conditions are required for the development to comply with the codes; and that, the assessment manager’s decision may conflict with an applicable code only if there are enough grounds to justify the decision having regard to the purpose of the code. In the latter event, the assessment manager’s decision must not compromise the achievement of the desired environmental outcomes for the planning scheme area.
The IPA provides that appeals to a tribunal may be by hearing or written submission; that a party to an appeal may appear in person or be represented by an agent, but not by a lawyer; that in conducting a hearing the tribunal need not proceed in a formal way, is not bound by the rules of evidence, and may inform itself in the way it considers appropriate. In a case where the tribunal sets aside the decision appealed against and makes a decision replacing the decision set aside, (and in other specified circumstances) s 4.2.34(3) IPA provides that the tribunal’s decision is taken for the Act (other than Part 2 Division 6) to be the decision of the entity that made the decision being appealed. It is not explicitly stated in the Act that an appeal to a tribunal is by way of re-hearing, involving the processes of assessment and decision, but it seems tolerably clear that that is what is intended by the legislation, whether there is an actual hearing, or the matter is decided on the basis of written submissions. It follows, in my opinion, that the tribunal in disposing of the appeal must comply with the requirements of s 3.5.4 and 3.5.13 IPA.
I do not consider that the tribunal’s decision is in conflict with the provisions of the applicable code with respect to views and outlook for future residents of the adjoining land, as is contended. I consider that, read reasonably, the reasons in this respect are to the effect that potential impacts on views and outlook would be significant were it not for the amelioration of the situation to be effected by the first condition of approval. That conditions imposed are to be taken into account in deciding whether or not the application complies with an applicable code, is made sufficiently clear by s 3.5.13(2).
The remaining question is whether the tribunal’s decision is impeachable because it took into account irrelevant considerations in reaching that decision. The matters which an assessment manager may take into account in making its decision are those specified in s 3.5.4. That section, as indicated, restricts the assessment of the application to applicable codes and the common material. Common material, for a development application, is defined in schedule 10 IPA to mean:-
“(a)All the material about the application the assessment manager has received in the first three stages of IDAS, including any concurrency agency requirements, advice agency recommendations and contents of submissions that have been accepted by the assessment manager; and
(b)if a development approval for the development has not lapsed – the approval.”
The assessment manager for the original application was referred to a brief outline of the Supreme Court proceedings by way of background but the relevant judgments were not part of the “material”. The decision of the building and development tribunal refers to not only the application and supporting plans and documentation, but to – “additional material provided by the applicant and the Council at and subsequent to the hearing, including copies of Court judgments and previous development permits over the subject site”.
It appears to me that the definition of “common material” extends only to material received by the assessment manager in the first 3 stages of IDAS. The term “assessment manager” cannot, in that context, include a tribunal or court, although in conducting a re-hearing each of those entities is engaged in assessing and deciding the application. The result is that the tribunal, in hearing the appeal was constrained by the provisions of s.3.5.4 and s.3.5.13, but in assessing the application was confined to the material received by the assessment manager in the first 3 stages of IDAS. It was therefore improper for it to refer to the judgments of the Supreme Court in relation to the encroachment. If the position were to be otherwise, it would have been necessary to define “common material” differently for an appeal.
If this is wrong, then to the extent that those judgments constituted legally binding orders between the respondents and the Wise interests which were relevant to the respondents’ position in making the application for a boundary relaxation, in effect as historical background, they were part of the common material before the tribunal. It was those judgments which explained how it had come to be that the realigned boundary between the property of the appellants before the tribunal and lot 46, was such that there was no boundary clearance between the pool structure and the boundary itself. Beyond that, in my view, the material could not be said to be “about the application” and was not part of the common material. The question is, then, whether the tribunal made impermissible use of that material, by taking into account irrelevant considerations derived from it, in arriving at its decision.
In my opinion the tribunal was not entitled to have regard to a perceived futility of the Supreme Court orders which would result if a boundary relaxation were not given upon the respondents’ application. I think that this was an irrelevant factor, reference to which would vitiate the exercise of the tribunal’s discretions in disposing of the appeal. It seems to me to follow from s 3.5.4, that the provisions of the Property Law Act, 1974 (as amended) concerning encroachments, and what can be done about them, and court proceedings with respect to those matters cannot be valid considerations affecting a determination which arises under the provisions of the Integrated Planning Act and the appellant’s planning scheme. It is pertinent to note, in any event, that the order of Mullins J, of 31 October, 2002, was subject to necessary consents by the appellant, so it was always the case with that order that it may be ineffective in the absence of such consents. The subsequent order of Fryberg J, vesting the land, the subject of the encroachment, in the respondents, did not alter that situation: see the decision of the Court of Appeal in Shadbolt & Anor v Wise & Others [2005] QCA 443.
Contrary to the respondents’ submissions, I think it was even less permissible for the tribunal to take into account findings of fact by the Supreme Court in relation to “views and outlook” and “privacy”, matters which are part of the subject matter of performance criterion P2 of the Code for Development on Steep or Unstable Land. These are matters which the tribunal must decide for itself as between the appellant and the respondents, and with reference only to the matters stipulated in s. 3.5.4. It was not entitled to adopt the conclusions of another body, formed for another purpose, in exercising discretions reposed in it by the legislation.
It seems to me, in the end, that the tribunal took the view that a boundary relaxation was, at least to some extent, dictated by the decisions which had been made in the Supreme Court. It is hard to see that those decisions did not, at least, affect its decision to approve the application. I therefore find that the tribunal did not assess the application as it was required to do by s 3.5.4 IPA on either of the bases stated in these reasons, and that, in consequence, its decision proceeded upon an error of law. The appeal is therefore upheld, the decision of the tribunal is set aside and the matter is remitted to the tribunal for decision in accordance with law.
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