Tom Dooley Developments Pty Ltd v Brisbane City Council & Pherous
[2010] QPEC 40
•27/04/2010
[2010] QPEC 40
PLANNING AND ENVIRONMENT COURT
JUDGE ROBIN QC
P & E Appeal No 750 of 2010
| TOM DOOLEY DEVELOPMENTS PTY LTD (ACN 092 700 868) | Appellant |
| and | |
| BRISBANE CITY COUNCIL | Respondent |
| and | |
| JAMIE PHEROUS | Co-Respondent |
BRISBANE
..DATE 27/04/2010
ORDER
CATCHWORDS
Sustainable Planning Act 2009 s 367, s 456, s 818
Application for declaration about what was permitted under a development approval constituted by a court order - condition that developer "retain" two walls remaining of a heritage building that had otherwise been demolished - state of the walls rendered construction activity on site unsafe - they lacked heritage value - applicant held entitled to dismantle walls and reinstate them at the end of construction - further relief granted (should it be necessary) by way of "permissible change" to the approval
HIS HONOUR: The Court makes an order in terms of the contents of an initialled draft, namely;
“UPON THE COURT BEING SATISFIED that there has been compliance with the requirements of the Sustainable Planning Act 2009 (“SPA”), with respect to the giving of notice of the Originating Application.
IT IS ORDERED THAT:
The Applicant has leave to file the Amended Originating Application which is attached hereto and marked “A”.
IT IS DECLARED AND ORDERED THAT:
Properly construed Condition 4 of the material change of use conditions within the development approval for a material change of use and preliminary approvals for building work and operation work dated 7 October 2009 granted in Planning and Environment Court Appeal No. BC.1254 of 2009 (“the development approval”) for land formally described as Lot 1 on SP 169891 and Lot 2 on RP 51326 does not preclude the Applicant from removing, refurbishing and reconstructing the walls referred to in that condition prior to the material change of use occurring.
Upon the Court being satisfied that to do so involves no more than a “permissible change” (within the meaning of that expression in s.367 of SPA) to the development approval, Condition 4 of the material change of use conditions within the development approval be changed to add the following words:
“… To remove doubt this condition does not preclude the removal, refurbishment and reconstructing of the walls prior to the material change of use occurring as a means of retaining such walls.”
Condition 4 in the Court's earlier order provides as follows:
"4. Existing Heritage Walls
The two existing brick walls comprising the Heritage Place shall be retained and incorporated into the proposed building as shown on the approved drawings."
The drawings which the Court approved show the walls (which were the side walls of an apartment building known as Aville Court located on the Brisbane River at New Farm) standing proud of a proposed new structure of seven floors of units. Considerable concern was expressed in the community at the loss of Aville Court. However, there's no suggestion that anything that occurred there happened unlawfully. A heritage listing was achieved too late to prevent demolition of Aville Court but for the two side walls or parts of them. The heritage architect Mr Scott discerns no heritage value in what remains. Nonetheless, preservation of those walls, which are so far as appearances go three floors of brickwork interrupted by three casements above a ground floor with some rendered finish on the upstream side‑‑‑‑‑
Is it the same on the other side? It's only one floor lower on the downstream side; is that right?
MR HUGHES: Yes, your Honour. On the upstream side, I think. There's four levels on the upstream side.
MR HUGHES: That's so, your Honour.
HIS HONOUR: ‑‑‑‑‑the bottom level.
It may well have been that if the developer had chosen to make an issue of retention of the walls in the appeal resolved by Judge Alan Wilson's order it would've succeeded in establishing an entitlement to remove them. It would seem unlikely to me that his Honour was ever asked to form an opinion. Battle was never enjoined on the issue of the walls.
It now emerges, and unsurprisingly, that retention of them in situ while the approved development is under construction would be unwise in the extreme. The walls have no load-bearing capacity. Some of the brickwork has deteriorated. There's a clear safety risk to persons on the site.
What's proposed by way of compliance with condition 4 is the removal of the walls temporarily. They will then be reconstructed using original materials and it's noteworthy that there will be an ample supply of spare bricks from the walls of Aville Court which have gone. The walls will be replaced, it was said as a façade, although that's perhaps a misnomer since the plans suggest they'll be free-standing elements now presumably adequately supported to secure their structural integrity.
I'm satisfied that the declarations power which the Court has under the Sustainable Planning Act 2009 - see section 456 – and which the parties have assumed applies in the present IPA-related matter, given section 818, is available to authorise the Court to make a declaration about what represents a suitable way of complying with a condition of a development approval, particularly one constituted by a Court order.
Given the way in which s 456(1)(a) (like its predecessor s 4.1.21 (1)(a) of the IPA) is expressed, the application is presented as one raising an issue under the Act. Mr Trotter instanced Aqua Blue Noosa v Noosa Shire Council [2005] QPELR 318 as an example of an application similar to the present one.
All interested persons have had an opportunity to express a view about the current application and indicated their agreement to what the applicant proposes in e-mail or letter communications. I refer to the Department of Environment and Resource Management as well as the Co-respondent.
The applicant is apprehensive that something may go wrong with the declaration, considered as protection for what it proposes to do in the future, and it wants some additional protection against the possibility of it’s being contended that the Court has somehow impermissibly changed the development approval constituted by the Court's former order.
I am far from being persuaded that there is any change in the circumstances, but am prepared to indulge the applicant. There's some good sense in its approach. What is happening, in my view, is of rather less moment than a "permissible change" as defined in section 367 of the SPA.
My misgivings centre on caution about producing anything that might be regarded as a precedent for the Court permitting demolition of a heritage building or anything analogous. While there's no suggestion that anything might go wrong to prevent realisation of the planning vision for the site, there are precedents for exactly that kind of outcome occurring (see LitBit Pty Ltd v Brisbane City Council [2009] QPELR 197 at [31]).
Once these walls are removed there's a possibility, whatever the Court might order, whatever the parties might intend, that they will not be reinstated. As it happens in the present context, this doesn't appear to be a matter of enormous moment so far as such heritage values Aville Court still possessesare concerned. That consideration is likely to provide an important distinction if in some future context anyone does suggest that I'm creating the kind of precedent I wish to avoid.
Mr Hughes for the applicant offered no opposition to my addition of the last seven words in paragraph 3 of the order to make it clear that the applicant is not being offered the opportunity of availing itself of the possibility the Court says is there of removing the walls, but not availing itself of the possibility of refurbishing and reconstructing them which is plainly intended to be a serious obligation under development condition 4.
I propose to append to these reasons Mr Trotter's helpful written submissions which set out a good deal of the relevant case law.
I should express the view that what is involved in “retaining” some feature is likely to vary depending on the circumstances. It's certain there will be many where a condition of retention requires actual retention in situ of the feature to be preserved with no interference whatever. I don't think that is the case here. Prompted by reference to the other matter in today's list which concerned a proposal to establish a McDonald’s restaurant, there occurred to me the example of a development condition of some future redevelopment which might require retention of the "golden arches." I feel confident that could be achieved by removal of such arches, keeping them safe from the perils of construction activity on the site, as a prelude to their being reinstalled on it.
Those are the reasons for the Court’s making the order which it has.
...
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In the Planning & Environment Court
Held at: Brisbane
Queensland
P & E Application No. 750 of 2010
| Between: | TOM DOOLEY DEVELOPMENTS PTY LTD |
| Applicant | |
| And: | BRISBANE CITY COUNCIL |
| First Respondent | |
| And: | JAMIE PHEROUS |
| Second Respondent |
SUBMISSIONS OF THE FIRST RESPONDENT BRISBANE CITY COUNCIL
The applicant asks this court for relief in terms of the Amended Originating Application filed by leave on 27 April 2010.
The application essentially seeks declarations, which may be summarized as follows:
(a)That the terms of Condition 4 of the approval, granted by this court on 7 October 2009, properly construed, allow the applicant to remove, refurbish and reconstruct the walls referred to in that condition.
(b)In the alternative, be it necessary to do so, that the following words be added to Condition 4, pursuant to S.375 SPA.
“To remove doubt, this condition does not preclude the removal, refurbishment and reconstructing of the walls prior to the material change of use occurring.”
(c)In the further alternative, again be it necessary to do so, that the following words be added to Condition 4, pursuant to S.375 SPA.
“Retention of the existing walls referred to in Condition 4 of the material change of use conditions may be achieved, in the manner contemplated by the approved drawings, by their temporary removal, the refurbishment and the reconstructing of those walls”.
Background
(a) On or about 3 September 2008, the applicant lodged a development application for a –
(1) development permit for a material change of use for multi-unit dwelling on the site of a heritage place and adjoining a heritage place; and
(2) preliminary approval for carrying out building work on the site of a heritage place and adjoining a heritage place; and
(3) preliminary approval for carrying out operational work on the site of a heritage place and adjoining a heritage place.
(b)On 25 March 2009, the respondent granted conditional approval of the application.
(c)There was a submitter appeal which was dismissed.
(d)The approval by this Court on 7 October 2009 included Condition 4 which provided:
4) Existing Heritage Walls
The two existing brick walls comprising the Heritage Place shall be retained and incorporated into the proposed building as shown on the approved drawings.
(e)Approved drawing DA 203 depicts the walls in question.
Reasons for the Current Application
(1) The proposal to dismantle and reconstruct the walls is driven by engineering, safety and amenity factors[1] which have become apparent since the Court order.
[1] McDonald para 18
(2) Removal and re-instalment of the walls carries with it no adverse heritage aspects[2].
[2] McDonald para 19
(3) The existing walls have insufficient load bearing capacity and the only appropriate approach in terms of function and safety, both during and after the construction phase, is to dismantle the walls, provide a new load bearing structure and utilize the existing bricks as a non load bearing facade[3].
[3] Lemcke conclusion 4
Condition 4
This condition places its focus on the existing walls being –
“retained and incorporated into the proposed building”.
The Shorter Oxford English Dictionary defines “retain” as:
“1. To restrain; to hold back, check or stop; to prevent or hinder -1737. b. To keep in custody or under control; to prevent from departing, issuing or separating; to hold fixed in some place or position…..…
3. To keep hold or possession of; to continue to have or keep, in various senses…..…d. To allow to remain, in place of discarding or removing; to preserve.”
Construction of the Approval
Principles
(a)Where a planning approval is ambiguous, it should be construed in a manner which places the least burden on the landowner[4].
[4] Matijesevic v Logan City Council (2) 91983) SILGRA 51, 57
(b)If a condition is imposed which restricts an approval it should be expressed fairly[5].
[5] Mariner Constructions P/L v Maroochy Shire Council (2000) QPELR 334, 336
(c)In construing an approval, the search is not for what the Council may have contended or what, if it had been interrogated about various possibilities, it would have said it intended; each approval must speak according to its written terms, construed in context but having regard to its enduring function[6].
[6] House of Peace P/L v Bankstown City Council (2000) 106 LGERA 440
(d)It has long been recognized that use rights are determined from the approval itself, which may include other material by express or necessary implication[7].
[7] Aqua Blue Noosa P/L v Noosa Shire Council (2005) QPELR 318, 320
(e)The nature and extent of any approved development must be determined by construing the document of approval, including any plan or other document which it incorporated, aided only by that evidence admissible in relation to construction which establishes or helps to establish the meaning of the document as the act of the relevant authority, not the result of a bilateral transaction between the applicant and the Council[8].
[8] Parramatta City Council v Shell Company of Australia Ltd (1972) 2 NSWLR 632
(f)In construing an approval a Court is not dealing with an Act of Parliament and an overly technical approach is not called for. The words should not be scrutinized in the same way as words used by the parliamentary draft-persons[9].
[9] Hawkins & Izzard v Permarig Pty Ltd (2001) QPELR 414, 416
(g)Extrinsic evidence, in the form of expert evidence, may be admissible to explain technical terms. This may extend to explaining the nature of the site so that the impact and meaning of a condition can be understood[10].
[10] Hawkins supra 416
(h)Extrinsic evidence is also admissible to understand the physical state of the land at the time of the approval. This may include identification of things like existing vegetation and specific features referred to by the conditions[11].
[11] Caloundra City Council v Pelican Links P/L (2005) QCA 84Of the above principles, (a), (c) and (f) above are particularly relevant. Of the above extracts from the SOED, extract 3 is also particularly relevant in the sense that the existing walls will be “retained” in the sense that they will be “kept”, instead of being discarded.
When the new building’s construction is complete, such walls will clearly have been “retained and incorporated into the proposed building as shown on the approved drawings”.
10.Thus, when properly construed according to appropriate canons of construction, Condition 4 is satisfied by the applicant’s removal, refurbishing and reconstruction of the walls referred to in that condition.
11.Whilst the process of dismantling and reconstruction may not have been intended by the person originally drafting Condition 4, the Condition on its proper interpretation allows for it.
12.The safety concerns referred to by Mr Lemcke, are of themselves cogent reasons to undertake the work in the proposed way. If compliance with a condition can be achieved in two ways, one of which is a safe way and one of which is a potentially dangerous way, this Court would be slow to discourage the adoption of the safe way of achieving compliance.
13.Proposed Orders 1 and 2 are therefore not opposed, proposed Orders 3 and 4 in the circumstances, are unnecessary and otiose.
T Trotter
Counsel for the First Respondent,
Brisbane City Council22 March 2010
Serenity Lakes Noosa P/L v Noosa Shire Council (2007) QPEC 005 [6]
Vidakovic v Brisbane City Council (2009) QPEC 053 [32]
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