WAW Developments Pty Ltd v Brisbane City Council

[2010] QPEC 69

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

WAW Developments Pty Ltd v Brisbane City Council [2010] QPEC 69

PARTIES:

WAW DEVELOPMENTS PTY LTD ACN 084 429 827

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

FILE NO/S:

No. 3586 of 2009

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

6 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

6 August 2010

JUDGE:

Everson DCJ

ORDER:

That the appeal be struck out.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – whether properly made application pursuant to s 3.2.1 of Integrated Planning Act 1998 – meaning of “interfering with a State resource” – s 12 Integrated Planning Regulation 1998 – meaning of “streetscape”.

COUNSEL:

Hughes SC and DM Favell for the appellant

Trotter for the respondent

SOLICITORS:

Colwell Wright for the appellant

Brisbane City Legal Practice for the respondent

1. This is an application for a declaration pursuant to s 4.1.21 of the Integrated Planning Act 1997 (“IPA”) that the development application the subject of this appeal (“the development application”) was not a properly made application pursuant to s 3.2.1 of IPA. The respondent also seeks an order dismissing the appeal.

1. The respondent asserts that the development application was not a properly made application because the development involves a State resource prescribed under a regulation and it was not accompanied by evidence that the chief executive of the department administering the resource is satisfied either that the development is consistent with an allocation of, or entitlement to, the resource, or that the development application may proceed in the absence of an allocation of, or entitlement to, the resource.

1. The development application seeks to regularise a structure in the order of 18 metres long, 2.3 m wide and up to 2.8 m high at the level of the balustrade, which has been constructed over the footpath adjacent to the appellant’s restaurant premises situated at Wyandra Street, Newstead (“the structure”).  The footpath slopes markedly at this location and the structure has a ramp on the uphill side and 11 steps on the downhill side.

1. In the development application the appellant submitted that the proposal was:-

“to extend the existing approved Restaurant Use … over the footway immediately adjoining the existing activity by way of construction of a steel and concrete deck (the structure) and doorway leading to the structure, for use by the Restaurant for Outdoor Dining …”

1. Relevantly s 3.2.1 of IPA states:-

“(5)To the extent the development involves a State resource prescribed under a regulation, the regulation may require the application to be supported by one or more of the following prescribed under the regulation for the development –

(a)evidence of an allocation of, or entitlement to, the resource;

(b)evidence the chief executive of the department administering the resource is satisfied the development is consistent with an allocation of, or entitlement to, the resource;

(c)evidence the chief executive of the department administering the resource is satisfied the development application may proceed in the absence of an allocation of, or entitlement to, the resource.”

Section 3.2.1 subsequently provides that an application that does not comply with the above provision is not a properly made application.

1. Section 3.2.1(5) of IPA calls up s 12 of the Integrated Planning Regulation 1998 (“IPR”). It is in the following terms:

“(1)For s 3.2.1(5) of the Act, schedule 10 prescribes State resources and the evidence required to support an application that involves taking or interfering with a resource.

(2)The chief executive may decide that evidence provided to support an application that involves taking or interfering with a resource may be used to support one or more applications for the same type of development, regardless of who is the applicant.

(3)If the chief executive makes a decision under subsection (2), the evidence is a general authority to support applications for the particular type of development.

(4)If the evidence required to support an application is a general authority, a copy of the general authority must be attached to the application.

(5)The chief executive may decide that a general authority can no longer be used to support an application for particular type of development.

(6)         In the section –

Chief executive means the chief executive of the department administering the resource.”

1. Schedule 10 of the IPR relevantly provides that where the State resource is a road such as Wyandra Street, the department administering the Land Act 1994 is the department administering the resource. It is common ground that at the relevant time this was the Department of Environment and Resource Management (“DERM”).

1. The appellant was apparently aware of the obligations under s 3.5.1 of IPA and by letter dated 23 July 2009 it forwarded an “Application for evidence of resource entitlement” and other official forms together with plans and photographs detailing the structure. The covering letter stated that the appellant requested “confirmation of what type of tenure your department requires our company to have for the subject footpath improvement as constructed and shown on enclosed form.”

1. The appellant received the following response dated 27 July 2009 which it asserts complies with s 3.2.1(5) of IPA:-

“I refer to your letter dated 23rd July 2009, in which you request resource entitlement for the construction of an elevated deck to facilitate footpath dining at the above location.

The Department of Environment and Resource Management (DERM) advises that it will not require tenure over the subject area for the construction of the elevated deck.

It has been determined from the information provided and further investigation by this Department that the activity of outdoor dining is covered by local laws administered by the Brisbane City Council.  The General Authority – evidence of resource entitlement for roads issued by this Department lists the activity of outdoor dining, as traditionally consistent with the use of a road.

Enclosed for lodgement with your application is a copy of the General Authority.

I hope this letter is of assistance to you.”

1. Unfortunately the accompanying “General authority – Evidence of resource entitlement for roads” (“the General Authority”) relevantly only authorises development applications “for road purposes” or “consistent with a road” which are specified as including “outdoor dining to which the public has unrestricted access, with no fixed improvements UNLESS part of the streetscape, and tables and chairs, etc are removed each day after trading.”

1. The respondent submits that the development application sought the appropriation of part of the footpath and the structure is outside the contemplation and terms of the General Authority which is the only evidence permitted pursuant to s 12(3) of the IPR on the facts before the Court.

1. The appellant submits that, firstly, the development application does not involve a State resource as the development to which the development application relates does not involve taking or interfering with a State resource as contemplated by s 12 of the IPR and s 3.2.1(5) therefore has no application. Secondly, the appellant submits that if s 3.2.1(5) has application, the appellant has complied with the requirements of this section.

1. The meaning of the term “taking or interfering with a State resource” was explained by Keane JA in Stockland Property Mangement Pty Ltd v Cairns City Council & Ors [2009] QCA 311 at para [39] in the following terms:-

“But with reference to the statutory context in which the phrase ‘taking or interfering with a State resource’ is used, it affords support for the view that ‘interference’ must be understood as involving some clash with or hampering or hindering of, the State’s ownership or stewardship of the resource.”

1. The appellant submits that because the structure does not cover the whole footpath there is no interference, rather it merely affords pedestrians a choice of either walking along the structure or walking along what is left of the footpath.  This is a ridiculous proposition.  The structure is not at all inviting to the general public.  It alienates part of the footpath to them because of its bulk, its height, its design (which includes solid balustrading and steps) and also because of the use for which it is intended.  I find as a fact that the development contemplated by the development application interferes with the State’s stewardship of the footpath in Wyandra Street.

1. Turning to whether the response of DERM in the letter dated 27 July 2009 constituted compliance with s 3.2.1(5) of IPA. The appellant concedes that there is no question of there being an “allocation or entitlement” to the footpath and it therefore submits that there has been compliance with subsection 3.2.1(5)(c) on the basis that this letter constitutes evidence that the chief executive of DERM is satisfied that the development application may proceed in the absence of such an allocation or entitlement.

1. This is an incorrect interpretation of what is stated in the letter.  The letter merely refers the appellant to the General Authority.  The terms of the General Authority make it clear that it only includes outdoor dining to which the public has unrestricted access where there are no fixed improvements “UNLESS” they form “part of the streetscape”.

1. In Gelling & Ors v Cairns City Council & Anor [2008] QPEC 38 at [30] Dodds DCJ defined the term “streetscape” to mean, “the presentation offered by a street in its context by which I mean the buildings, other development, open space, vegetation, etc which may reasonably be considered as framing it.”

1. On the facts before me and in particular having regard to the photographs of the structure put in evidence, I do not consider that the structure is part of the streetscape.  It does not frame the street.  It intrudes into the street.

1. It follows that the appellant failed to comply with s 3.2.1(5) of IPA.

1. I declare that the development application is not a properly made application.

1. I order that the appeal be struck out.