Tom Dooley Developments v Brisbane City Council & Seywen Pty Ltd

[2004] QPEC 95

[2004] QPEC 095

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No 2649 of 2004

TOM DOOLEY DEVELOPMENTS	Applicant
and
BRISBANE CITY COUNCIL	First Respondent

and

SEYWEN PTY LTD  Second Respondent

BRISBANE

..DATE 26/08/2004

ORDER

CATCHWORDS: Integrated Planning Act 1997 - discretion under
s.4.1.5A exercised to allow application for change of a development approval embodied in a Court order allowed to proceed despite absence of consent of all relevant owners under s.3.5.33(3) - approved development had proceeded so far that ownership of 39 newly created lots had passed from the (developer) applicant to 39 intended owners.

HIS HONOUR:  On 4 March 2003, Judge Quirk, in appeal 4294 of

2002, at the joint invitation of an adverse submitter

appellant, Seywen Pty Ltd, the Brisbane City Council and the

co-respondent, Tom Dooley Developments Pty Ltd, gave the

Court's imprimatur to a detailed "approval package" in respect

of the then co-respondent's development application.

The contentious aspect of that application, I understand, had

been Seywen's concern that the four level basement carpark

proposed would be inappropriate development if it represented

an addition to the commercial carparking available in the

Fortitude Valley area.

There had been one other adverse submitter which didn't become

involved in the appeal and which relied on similar objections.

One change made to the original development application was the reduction of the proposed 250 car spaces to 180.  More significant for today was condition 5 of the approval package which restricted access to the carpark prior to 9 a.m., Monday to Saturday, to residents in the development and their visitors, and to staff and residents of Dooley's Hotel and staff of an art centre known as the Judith Wright Centre located nearby in Fortitude Valley.

That provision was in subparagraph (b) of the condition.

Subparagraph (c) restricted access to the carpark between

9 a.m. and 6 p.m., Mondays to Saturdays, in a way which

apparently alleviated Seywen's concerns and was acceptable to

the other parties.

A change to the operations of Dooley's Hotel which is the

principal commercial operation on the development site has

been approved by licensing authorities to authorise the

serving of meals from 7 a.m.  It's desired to ensure that

Dooley's customers, who are interested in breakfasting there,

be entitled to use the car park which is operated, as I

understand it, on a pay for use basis, subject to certain

restrictions set out in condition 5(c).

The matter having come to the Court, if the conditions of the

approval are to be changed, that has to be done by the Court

under section 5.5.33 of the Integrated Planning Act 1997, (the

IPA).

Subsection (7) requires the Court to have regard to the

matters it would have regard to if the request for a change of

the approval were a development application and if (as is the

case) submissions were made about the application under which

the condition was originally imposed, such submissions.

Seywen is represented by its solicitor today.  Serving it may

not have been strictly necessary, but was an obvious courtesy.

Mr Toaldo's not raising any difficulty about the present

application which, needless to say, is one by Tom Dooley

Developments Pty Ltd to change the approval.

The other adverse submitter has not been served, but the Court

is aware of the substance of what it had to say.  What matters

today, it seems to me, is the difference which the new proposal will make if implemented.  It bodes to increase the usage of the car park, particularly between 7 a.m. and 9 a.m. Mondays to Saturdays, and Mr Skoien, who appears for the present applicant, accepts that it will involve additional use of the car park in the sense of patrons coming in who otherwise would not have.  There's a traffic report from Mr Cameleri justifying the change from the point of view of his expertise.

The Council, represented today by Mr Chadwick, raises no

difficulty standing in the applicant's way.  What may

stand in its way is section 3.5.33(3) which provides, "The

request must contain the owner's consent" if the person

applying is not the owner of the land to which the approval

attaches.  Implementation of the overall development proposal

has seen the development and sale of 39 lots being

residential units.

It is plainly a difficult task for the applicant to obtain

consents of those 39.  Experience suggests that would probably

be well nigh impossible to achieve, if only because of inertia

in people who may not have particularly strong feelings either

way.

The matter was listed a week ago when Mr Skoien informed me

that his client had just received an indication from one of

the 39 presumed owners, all of whom of course had been

approached by letter earlier in the month, to the effect that

there had been a change in ownership of the subject lot; time

was needed to allow the communication which had been sent to

the presumed new owner to reach its intended (and the

appropriate) recipient.

The applicant's exercise has produced 12 signed consents in

common form as submitted by the applicant and a 13th consent

in unsigned form.  There has been no indication of opposition

to what's proposed from any quarter.  Indeed, the only

complication that surfaced is the one which Mr Skoien advised

the Court about last week.

It seems that nothing has been returned by the post office.  A

search has been made of the body corporate records which has

produced some discrepancies in recorded addresses.  The

applicant has taken the cautious approach of writing to

multiple addresses to cover all bases, so to speak.

The Court of Appeal's decision in Oakden Investments Pty Ltd v

Pine Rivers Shire Council [2003] 2 QdR 539 indicates that

section 4.1.53 of the IPA might be invoked to overcome the

absence of a consent required under section 3.2.1.  Section

4.1.53, which was relied on by Judge Dodds at first instance

(see [2003] QPELR 117) has been replaced by section 4.1.5A

which appears to me far more general in its scope and

considerably easier for an applicant to satisfy. By subsection (2), the Court is given a very broad discretion to "deal with the matter in any way the Court considers appropriate". The section comes into play because of the inability of the applicant to comply fully with section 3.5.33(3) by demonstrating consents of all relevant owners. I accept that the situation is different from that considered by the Court of Appeal in Bartlett v Brisbane City Council [2003] QCA 494.

The only decision upon section 4.1.5A of which I'm aware is

that of Judge Rackemann in Evans v Gold Coast City Council [2004] QPEC 019. In that case, his Honour accepted he had jurisdiction to apply the new section to overcome the lack of an owner's consent which the IPA required. However, his Honour declined to exercise the discretion favourably to the applicant having regard to his view that it had genuine concerns which the evidence showed to be well founded to explain its position - the objector, the party who withheld consent had well founded bases for doing so.

There is no suggestion from any quarter here of any desire to

oppose what the applicant presently wants.  Both last week and

today, the bailiff called outside the Court for appearances by

the owners of lots 1 to 39 in Body Corporate FV 4006.  Nobody

turned up.  Notwithstanding that, I would think that if some

substantial injustice in the way the Court will proceed today

can be demonstrated by any of those lot owners, the Court

would accord such owners the ordinary right of a person in

whose absence an order is made to approach the Court to seek

to have the order changed or even set aside.

There can't be any guarantee that such an exercise would

succeed.  In that regard, reference might be made to the

decision in Greatlife Pty Ltd v Brisbane City Council [2001] QPELR 42 where Judge Brabazon QC considered there was little merit in the position of the owner which had exercised its right to withhold a necessary consent; the claims made were called "tenuous". This was held not to vitiate the development application which had proceeded to the stage

of being approved by the Council.

In all of the circumstances, the Court will make an order in

the form which Mr Chadwick has helpfully prepared.  For reasons of simplifying the task of identification of the conditions which apply to the development, the order annexes a new conditions package minus the fold-out plans.  In respect to those plans, there's no change from the existing conditions

package.  What changes is the content of condition 5(b) and

(c).

Mr Chadwick's order has been amended by me to include specific

provision that the application should be determined pursuant

to section 4.1.5A notwithstanding that section 3.5.33(3) hasn't been fully complied with.  (I might mention that the plans show that with the possible exception of lot 1, which may have its own security arrangements, the parts of the car park where those occupying lots 1 to 39 might leave their vehicles are locked off in separate areas in one corner on two levels so that it can be confidently expected that the lot owners don't face any new difficulties whatsoever in enjoying the car park for its principal purpose of accommodating their vehicles.)

There would be an order in terms of the draft which is

initialled.

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