Trexmist Pty Ltd v Brisbane City Council

[2006] QPEC 67

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Trexmist Pty Ltd v Brisbane City Council & Anor  [2006] QPEC 067

PARTIES:

TREXMIST PTY LTD ACN 080 493 162

Applicant

v

BRISBANE CITY COUNCIL

Respondent

And

RUSSELL ARCHITECTS PTY LTD

Co-Respondent

FILE NO/S:

BD 3813/03

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

13 July 2006

DELIVERED AT:

Brisbane

HEARING DATE:

29 May 2006

JUDGE:

Alan Wilson SC, DCJ

ORDER:

CATCHWORDS:

PLANNING – PLANNING LAW – CONDITIONS OF APPROVAL – appeal against development approval – appeal against conditions – appellant concerned that building works require access over and across its property – whether access arrangements may be the subject of conditions – power to impose conditions

Integrated Planning Act 1997, s 3.5.30

Sansom v Beaudesert (2003) QPELR 335

COUNSEL:

Mr B Job for Brisbane City Council

Mr A Fitzsimmons for Russell Architects Pty Ltd

SOLICITORS:

Appellant self-represented by Mr S Burns, a director

Brisbane City Legal Practice for the Respondent Council

Corums Lawyers for the Co-Respondent

1. This is an appeal by Trexmist Pty Ltd (represented by its Director, Mr Burns) against Council’s decision to approve a development application, subject to conditions, for a material change of use and the carrying out building work for business premises.  The appeal is against the approval of the development application.

The Site

1. The approval concerns the co-respondent’s derelict four-storey property at 45-47 Edward Street, Brisbane, near the intersection of Edward and Margaret Streets.  Trexmist is the owner of the adjoining property at 41 Edward Street, on the corner of Margaret Street.  Its building has three storeys, with a commercial operation on the ground floor and two upper storeys used for residential purposes.  The properties share a common boundary wall which has been partly demolished following a fire in the co-respondent’s building.  There is a laneway at the back of both buildings.

1. The subject property has a chequered and unfortunate history.  Vacant for many years, it has been intermittently occupied by squatters and suffered major fire damage in May 2001. In November 2004 it was the scene of a spectacle when occupants caused a disturbance which resulted in property damage and traffic disruptions. Television news footage of both these incidents was shown to the Court by Mr Burns[1].

   [1] Exhibit B

The Proposal

1. Although the appeal was, on its face, one brought to contest and set aside the development approval granted by Council to the co-respondent, it is clear Trexmist (that is to say, in reality, Mr Burns) is only concerned about the manner in which the building work will be carried out and, at the commencement of the hearing, it was agreed that the issues had reduced to two: the question of footpath closure (and pedestrian disruption), and of access to, over and above the Trexmist property during building work.

1. The question of footpaths and their management is not one which requires a determination.  It is a matter falling within the course of any works associated with the approval, and concerns the Council’s statutory responsibilities in relation to streets and the like.  There was no evidence suggesting it will be problematic.  Council did not deem it necessary to impose any special conditions, and I am not persuaded it is necessary to go behind that decision.

1. The proposal would see the co-respondent’s building renovated, and a fifth level added, and involve the repair of the common boundary wall left damaged by the fire in 2001.  Surprisingly, the co-respondent could not say whether access via the appellant’s property would be required for the works[2].  It is difficult to see how these significant repairs and improvements could be carried out without access over the appellant’s property, and written submissions from Counsel for the co-respondent tacitly admitted that.

   [2] although it has the onus of proof: Integrated Planning Act 1997, s 4.1.50(2)

1. In light of the history of the building in recent years, Mr Burns’ concerns are unsurprising.  Trexmist has made substantial, impressive improvements to its property but the occupants’ lives have been, to a degree, blighted by the activities of squatters in the adjoining building.  Mr Burns also maintains his company’s building suffered damage in the course of the fire, or after it, but despite requests the co-respondent did not compensate it for the repair costs.  Mr Churven, a director of General Estates, gave evidence that an offer to pay compensation for this damage had been made, but was not accepted by the appellant[3].  This was not, regrettably, put to Mr Burns when he gave evidence.  Fortunately, it is unnecessary to decide the matter; but the evidence, albeit unsatisfactory, is sufficient for it to be said that Mr Burns has some basis for concern that future works may cause damage.

   [3]T 39

1. Reflecting these fears, a draft deed had previously been submitted by Trexmist to the co-respondent which outlined what it thought was necessary to protect its interests in the event any of the building work necessitated access across its property, or was performed in the airspace above it.  The deed’s provisions included payment of a security deposit.  It has not been signed by the co-respondent, which opposed any order compelling it to do so, or the imposition of conditions reflecting any of its terms.

1. Mr Burns may, it appears, wrongly believe that the Development Approval gives the co-respondent access to Trexmist’s property. While it is unclear whether access would be required it is unassailable, I think, that in that event consent would first need to be obtained.  This is a basic principle of property law.  The terms of that consent, if given, are matters for the parties and it does not seem to me to be within my jurisdiction, here, to set them.

1. The court has power to impose conditions pursuant to the Integrated Planning Act 1997, s4.1.54. Those conditions must be ‘relevant and reasonable’: s 3.5.30. It is the case that, whether or not conditions of the kind sought by Trexmist were imposed, the legal position would not be affected: the co-respondent could not itself, or by its agents, enter on to Trexmist’s property without its consent. Nor can the court compel execution of the deed, or settle the terms on which access might be granted – conditions about matters of that kind would not be integral to, or arise from, the Development Approval and would not properly fall within a local government’s functions under the Act (and are not, then, ‘relevant’[4]).

   [4]Proctor v Brisbane (1993) 81 LGRA 398, at 404

1. There are, however, occasions when this Court may consider attaching conditions which might, at first blush, appear superfluous for reasons explained by his Honour Senior Judge Skoien in Sansom v Beaudesert (2003) QPELR 335, at [37] (in a case in which the condition in dispute sought to require the approval holder to comply with all the relevant provisions of the Environmental Protection Act):

From the point of view of the perfectionist, it may be said to be otiose to put a condition on an approval which says, effectively, ‘it is a condition that you obey the law’ but it is often seen, does no harm and acts as a reminder.  And it does serve the useful purpose of making a breach of the law a breach of the development approval from which different or extra consequences may flow.

1. The unfortunate history of the subject property and the relations of the adjoining owners, outlined above, seem to me to bring this case within the circumstances described in that passage.  The parties have failed to resolve questions relating to a likely need for access over one property to affect improvements to another.  A condition which clarifies their respective positions, and reminds them of the need to resolve the matter, would be pertinent, and timely. 

1. Mr Job, for the Council, supported that course and helpfully suggested a condition in terms that ‘Access for the purpose of carrying out building work associated with the approval may not be had onto or over the land at 41 Edward Street in the absence of the written consent of the owner of that land being first obtained’.  Save for that indication, I will adjourn the matter to allow the parties to resolve other conditions which, I was told, may require modification as a consequence of the course this appeal took.