Westfield Management Ltd v Brisbane City Council & Anor
[2003] QPEC 10
•17 April 2003
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Westfield Management Ltd v Brisbane City Council & Anor [2003] QPEC 010
PARTIES:
WESTFIELD MANAGEMENT LTD Applicant
v
BRISBANE CITY COUNCIL First Respondent
&
HA BACHRACH (NOM)
PROPRIETARY LIMITED Second RespondentFILE NO:
4951 of 2002
PROCEEDING:
Application for declarations
HEARING DATE:
31 March, 1 and 2 April 2003
DELIVERED AT:
Brisbane
DELIVERED ON:
17 April 2003
JUDGE:
Judge Brabazon Q.C.
ORDER:
Declaration that Council’s decision is invalid and is set aside. The application is remitted to Council to be dealt with according to law.
CATCHWORDS:
LOCAL GOVERNMENT – TOWN PLANNING - declaration – compliance of proposal with local plan - interpretation of City Plan 2000 – “jurisdictional fact” – meaning of “have regard to” – review of Council’s decision, effect of town planning report
Integrated Planning Act 1997 (Qld) s 3.5.4; s 3.5.11; s3.5.13
Reservilt Pty Ltd v. Maroochy Shire Council (2002) QCA 367
Weightman v. Gold Coast City Council (2002) QCA 234
Vynotas Pty Ltd v. Brisbane City Council [2001] 1 Qd R 108
Grosser v. Gold Coast City Council (2001) 117 LGRA 153
Eshenko v. Cummins (2000) QPELR 386
Buck v. Bavone (1976) 135 CLR 110
Minister for Immigration and Multicultural Affairs v. Yusef (2001) 75 ALJR 1105
Dunlop v. Woollahra Municipal Council (1975) 2 NSWLR 446
R v. Brisbane City Council; ex parte Read [1986] 2 Qd R 22
Timbarra Protection Coalition Inc v. Ross Mining ML (1999) 46 NSWLR 55
Zhang v. Canterbury City Council (2001) 51 NSWLR 589
Ballymont v. Ipswich City Council (2002) QCA 233
COUNSEL:
Mr D Gore QC and Mr T Trotter for the applicant
Mr M Hinson SC for the first respondent
Mr P Lyons QC and Mr R Litster for the second respondentSOLICITORS:
Minter Ellison for the appellant
Brisbane City Legal Practice for the first respondent
Praeger Batt for the second respondent
Introduction
On 22 July 2002 H A Bachrach (Nom) Pty Ltd (Bachrach) lodged a development application with the Brisbane City Council. It contained a proposal to re-develop a large site in the Nundah shopping district so that there would be a shopping centre, offices and multi-unit dwellings in an integrated development on the land. These are the main aspects of the proposal:
“- total GFA 20,185sqm incorporating a 3,300sqm Woolworths supermarket, 2,100sqm specially shops along an enclosed retail mall, 2,510sqm offices, and 10,500sqm residential (approx. 92 dwelling units);
- building height up to 10 storeys above ground, comprising a 3 storey podium (2 levels of parking, 1 level of retail and offices) and a 6-7 storey residential tower above the podium;
- access to retail car parking via Buckland Rd and Aspinall St;
- access to residential car parking via Aspinall St;
- service vehicle access to retail off Buckland St;
- 491 parking spaces – 146 residential; 345 retail/commercial;
- pedestrian connections through the site via retail mall between Sandgate Rd and Aspinall St, and via the car park between Buckland St and Aspinall St.” (from Exhibit 8)
Because of the provisions of the Integrated Planning Act 1997 (Qld) (IPA), and the area classification of the land according to City Plan, the application was code assessable. That is, it did not have to be advertised to the public. There were no rights to appeal against a decision of Council. The application was approved by the Council’s Urban Planning Committee at a special meeting on 18 December 2002.
As Westfield has no right to appeal, it relies on the court’s power to make declarations about:
“(a)a matter done, to be done, or that should have been done for this Act …;
(b)the construction of this Act and planning instruments under this Act; and
(c)the lawfulness of land use or development … .”
If a declaration is made, then “the court may also make an order about a declaration”. See s 4.1.21 and s 4.1.22 of the Integrated Planning Act.
Westfield asks for declarations that:
(a) the above development is in conflict with the Toombul-Nundah Major Centre Local Plan Code;
(b) a declaration that, upon the proper construction of that local plan, the application must be refused;
(c) a declaration that the Council’s decision of 18 December 2002 must be set aside.
The Planning Provisions
By reason of its designation, development of the site for “Centre Activities” is code assessable. “Centre Activities” include shops (a supermarket is an example), multi-unit dwellings, and offices. The Local Plan Code specifically retains the level of assessment which applies to the area designation.
It is necessary to understand how the Local Plan Code should be interpreted and understood. It is part of City Plan which adopts a performance approach to development assessment (Ch 1 p 4).
Brisbane has a system of Centres. Paras 4.4.21 and 4.4.22 provide that:
“A broad range of development will be focussed, a system of Multi-Purpose Centres … Multi Purpose Centres are to provide for a wide range of uses to develop at convenient and assessable locations in the city. They are, or can be, well serviced by pedestrian, bike and public transport modes. They incorporate most of the traditional strip shopping centres.” See also Ch 3, para 7.1 to the same effect.
The Toombul-Nundah Centre is one of the major concentrations of Centre activities outside the City Centre – it is called a “MP2”.
The Centre Design Code does not apply to this development because of the dominance of the Local Plan Code. However, some of its provisions are of city wide significance. See ch 5 p 36. Performance criterion p 3 says that “the height of buildings must be consistent with buildings in the locality or plan for the site through a Centre Concept Plan or Local Plan”. The acceptable solution in that case is a certain maximum building height. In the absence of a local plan, the maximum building height is according to Table 2. It provides that the maximum height of mixed residential/non residential buildings is 10 storeys. That maximum height provides a context in which height controls over the subject land can be considered.
This development is code assessable. According to para 2.5.1 of ch 3, p5, “development subject to code assessment is assessed against applicable codes in
ch 5 and any applicable Local Plan Code in ch 4.”
The local plans do not replace the area allocations described in ch 3 of City Plan. They put forward more locally focused desired land use and built form outcomes for the Local Plan Areas. Local Plans override any parts of the plan with which they may conflict (ch 3 p8). The use of codes is explained in ch 3, p 9:
“Chapter 5 – Codes and Related Provisions
…
The codes are the baseline regulations against which proposals are assessed
….
They contain performance criteria and acceptable solutions. In some cases, usually where no quantifiable Acceptable Solution can be provided, codes outline the nature of the investigations or process necessary to determine whether performance criteria are met.
For code assessment the code is the Purpose, Performance Criteria and Acceptable Solutions. The Acceptable Solutions represent the preferred way of complying with the performance criteria. There may be other ways to comply that meet the codes’ purpose. It is up to the applicant to demonstrate how alternative solutions achieve this. A proposal that fails to comply (except in insignificant details) and cannot be conditioned to mitigate impacts will be refused.”
Chapter 5 of City Plan gives details of the codes used in assessment. The codes are to give guidance on specific aspects of development that apply to different types of development. In para 1.1, “how to use the codes” the following appears:
“The Acceptable Solutions are in the right hand column of the code table. In some cases meeting the Acceptable Solution requires compliance with Australian Standards or the plan’s planning scheme policies.
For code assessment a proposal that complies with all acceptable solutions will be approved.
The performance criteria are in the left hand column of the code table. They provide a statement of the outcome that the Acceptable Solution must achieve. A proposal not complying with an acceptable solution must provide sufficient information to demonstrate how the corresponding Performance Criterion has been met. …
For code and impact assessment the Acceptable Solutions represent the preferred way of complying with the performance criteria. There may be other ways of complying with the performance criteria while still meeting the code’s purpose. It is the responsibility of the applicant to demonstrate how alternative solutions comply with the codes performance criteria. A proposal that fails to comply with the Performance Criteria, except in insignificant details, will be refused where it cannot be conditioned to mitigate impacts.”
According to para 1.1.1:
“Where a code is identified as being an applicable code for self assessment the code is to be read as being the Acceptable Solutions only. In some cases a code may specify which particular Acceptable Solutions are to be used in self-assessment.
…
Under para 1.1.2, dealing with code assessment, the Centre Design Code is described as a primary code. Any relevant Local Plan may also include a code that contains a Purpose, Performance Criteria and Acceptable Solutions that vary or are in addition to the primary code. In all of these circumstances the code is read as being the purpose, performance criteria and acceptable solutions. (In effect, in this case, the local plan provisions are dominant). To the same effect see para 7.2.3 of ch 3 p 55.
Chapter 4 of City Plan deals with the Local Plans. They override any other part of City Plan with which they may conflict. They “put forward more locally focussed desired land use and built form outcomes for the Local Plan areas than are contained in the Areas in ch 3.
…
Whether or not the level of assessment is varied by the Local Plan, code and impact assessable development within the Local Plan area will be subject to the Local Plan code and any other code referred to in the Local Plans Level of Assessment Table.
…
For Code Assessment, a proposal requires an application approval prior to commencing a development, and is assessed against the Purpose, Performance Criteria and Acceptable Solutions of the Local Plan Code, and other listed applicable codes.”
The following provisions of the Local Plan are relevant –
(From the Development Principles)
“2.1 Toombul-Nundah Major Centre is to be the primary Centre serving the middle and outer north-eastern suburbs of Brisbane. The Centre is to contain a range of functions that complement one another and combine to create an integrated mixed use Centre with strong retail, office, residential, community and entertainment uses and high quality public transport services.
2.2Toombul Shoppingtown is to remain the focus for retailing activity in the Centre.
2.3The Nundah Village area, focused on Sandgate Road and Station Street, is to retain its traditional shopping strip character and a pedestrian friendly streetscape. It is to contain a mix of small scale business, specialty shopping, community services, restaurants/cafes and shop-top housing uses, which remain active in the evenings and on weekends.
2.4Medium rise office buildings are to be located adjacent to the Nundah and Toombul Railway Stations or in association with any future redevelopment of Toombul Shoppingtown.
2.5Key views and vistas are to be maintained to the Corpus Christi Dome, Moreton Bay, the City Centre skyline and surrounding suburbs.”
The land is in two precincts - about 15% is in the Nundah Village Precinct, while about 85%, is in the Office of Business Precinct.
(From the Precinct Intent provisions)
“3.1 Toombul Precinct
This precinct is to accommodate a fully integrated shopping facility supported by the full range of Centre activities and a bus interchange facility. ---
3.2 Nundah Village Precinct
This precinct is to accommodate the full range of Centre activities, although at a scale, in keeping with the traditional built form and character of the Sandgate Road and Station Street shopping strips. Development of restaurant and café uses with provisions of outdoor dining and other after-hours uses is encouraged.
All development fronting Sandgate Road, Station Street and Buckland Road must contain active retailing or business uses at street level to enhance visual surveillance. Development of residential uses on upper levels (including shop-top housing) is encouraged, provided an appropriate level of amenity for residents can be provided. Development of separate residential buildings will not be supported.Future development along Sandgate Road should strengthen pedestrian links with development on land located within the adjacent Office/Business Precinct through the creations of mid-block connections such as shopping arcades or laneways.
All commercial development should be kept to the east of the Nundah Bypass.
…3.3Office/Business Precinct
This precinct is to accommodate a range of business and office premises, in purpose built commercial buildings.
Use of air space rights above Toombul and Nundah Railway Stations for commercial buildings is encouraged, subject to approval from the relevant State Government department/s.
Future development of the landholdings within this precinct that are located generally between Buckland Road and Aspinall Street should strengthen pedestrian links between Buckland Road and the Nundah Railway Station through the provision of an attractive footpath environment or the creation of a mid block connection such as a shopping arcade or laneway.”
(From the Local Plan Code) Chapter 4 p 473:
This code provides additional and/or alternative Acceptable Solutions to the Codes in ch 5, and take precedence over the Codes in ch 5. The purpose of this Code is to ensure that development in the Local Plan area is consistent with the development principles and Precinct intents of this Local Plan.
“5.1 Toombul, Nundah Village and Office/Business Precincts
Performance Criteria
Acceptable Solutions
Gross floor area, building height and building scale/form
P1 Building size and bulk must be consistent with the density and nature of the relevant precinct and retain an appropriate scale and relationship with the streetscape and other buildings in the precinct.
A1.1 …
A1.2 The maximum building height is in accordance with the limits set for the particular precinct in Table 1.
P2 Building work must be of a form that is appropriate to the scale and function of the precinct
A2 The building form is in accordance with the preferred form specified in Table 2.
Building setbacks and pedestrian shelter
P3 Buildings must be integrated into the existing or proposed streetscape in such a way that respects the desired character and amenity of the locality but maintains a visually appropriate form
A3 Setbacks from road alignment/s are in accordance with those setbacks specified in Table 3
…”
“Table 1 Maximum building height
Precinct
Use
Maximum Building Height
Toombul Precinct
Mixed residential/non-residential
8 storeys, although only 2 of development is permitted within 6m of the front boundary alignment.
Nundah Village
PrecinctAll 4 storeys, although only 2 storeys of development is permitted within 6m of the front boundary alignment. Office/Business Precinct All 6 storeys …”
“Table 2 Preferred building form
Precinct
Preferred building form
…
Nundah Village
PrecinctNew building work should be designed and constructed to ensure that it respects the architectural character, including the form, scale and massing of the traditional ‘main street’ and contributes to a continuous streetscape
Office/Business Precinct
New building work on sites adjacent to the Nundah Village Precinct should respect the context of the traditional ‘main street’ environment
Proposals that exceed the height of buildings on adjoining land in the Nundah Village Precinct by 2 or more storeys should be designed to contribute to the continuity and appearance of the traditional commercial streetscape character in the locality
The higher components of buildings will be located in positions that minimise impacts of scale and form on the streetscape, pedestrian environment and significant local vistas
…”
“Table 3 Building Setback from Road Alignment/s
Precinct
Preferred building form
…
Nundah Village
PrecinctNew buildings fronting Sandgate Road and Station Street will be built to the front road alignment
Proposed development in the immediate vicinity of the community/pedestrian focal areas (as identified on Map B – Design Guidelines) should be set back a maximum of 6m from the front road alignment to provide for public spaces and encourage community focussed activity
…”
It is intended that code assessable development which complies with the Acceptable Solutions will be approved. See Cl 5, p.3.
The planning controls permit a substantial degree of flexibility in the establishment of “Centre Activities” on the site. The acceptable solutions of the Local Plan Code do not restrict the range of uses which may be developed.
Council’s Powers
The provisions of IPA give local authorities the power to consider development applications. There is a power to consider an application requiring code assessment. The Council’s powers can be found in the following provisions of IPA:
“s.3.5.4 Code Assessment
(1)This section applies to any part of the application requiring code assessment
(2)The assessment manager must assess the part of the application only against:
(a) applicable codes - - -
(b) subject to paragraph (a), the common material
(3) - - -
(4) - - -
s.3.5.11 Decision Generally
(1) In deciding the application, the assessment manager must:
(a) approve all or part of the application - - -,
(b) approve all or part of the application subject to conditions…
or
(c) refuse the application
(2)the decision must be based on the assessment made under (s.3.5.4)
(3) - - -
s.3.5.13 Decision if Application Requires Code Assessment
(1)This section applies to any part of the application requiring code assessment
(4)The assessment manager must approve the application unless it is satisfied that compliance with the code cannot be achieved by imposing conditions
(2)The assessment manager may approve an application which does not comply with the code, if there are sufficient grounds to justify the decision, having regard to the purpose of the code.
(3) However:
(a) - - -
(b) for assessment against a code in a planning scheme – the assessment manager’s decision must not compromise the achievement of the desired environmental outcomes for the planning scheme area.”
(5)- - -
The re-arrangement of the sub-paragraphs in s3.5.13 is deliberate. Sub (4) reflects the paraphrase of 4(a) and (b) accepted by the Court of Appeal in Reservilt Pty Ltd v Maroochy Shire Council (2002) QCA 367, as expressing the true intention of the legislation. Also, consideration of 4(a) and (b) logically comes before the different consideration of sub-para (2).
Sub-para (2) is also paraphrased in this judgment to more clearly express the apparent intention of the legislation, in providing for the possibility of approval on “sufficient grounds”, even if there is non-compliance with the code.
The use of paraphrases, and the re-arrangement of sub-paragraphs to better express the meaning of the legislation, show how difficult it can be to understand the true meaning of a statutory provision which is not drafted in the clearest of ways. In Reservilt, the Court of Appeal overturned the interpretation of the trial judge. It is not at all surprising that officers of local authorities, and town planners, will struggle to understand the meaning of s 3.15.13.
In order to determine whether there are sufficient grounds to justify a decision, when there is conflict with the code, the decision maker should:
(a) examine the nature and extent of the conflict;
(b) determine whether there are any grounds which development on the part of the application which is in conflict with the code and that the conflict can be justified on those grounds;
(c) determine whether the grounds in favour of the application as a whole are, balanced, sufficient to justify approving the application notwithstanding the conflict;
(d) in any case, the decision must not compromise the achievement of the decided environmental outcomes for the planning scheme area.
(Those steps are taken, by analogy, from the decision of the Court of Appeal in Weightman v Gold Coast City Council (2002) QCA 234; (2002) 121 LGERA 161 at 170.)
It is clear that the grounds which may be taken into account are the matters set out in the code itself – s.3.5.4.
A Mandatory Provision
There should be no doubt about the requirements on Council. It must first assess the application against the codes, and only the codes, and its decision must be based on that assessment. See ss 3.5.4(2) and 3.5.11(2). Where there is compliance, then it must approve the application - s 3.5.13(4).
“Must” means must. It is an imperative word of absolute obligation. This context is very like that considered by the Court of Appeal in Weightman (above). There is no discretion to depart from such statutory requirements.
It may be that there is some misunderstanding, on the part of local government officers and legal practitioners, because of the remarks of the Court of Appeal in Vynotas Pty Ltd v Brisbane City Council [2001] 1 Qd R 108. In that case, which dealt with a transitional planning scheme, it was noted that such a scheme no longer had binding force but was of persuasive relevance only. See
s 2.1.23 and s 6.1.2(3) of IPA. Mr Justice Pincus felt it necessary to point out that the transitional provisions of IPA, “do not create a planless situation”.
The decisions of the Court of Appeal in Vynotas, Weightman and also in Grosser v Gold Coast City Council (2001) 117 LGRA 153 all dealt with transitional planning schemes, and their impact. While such planning schemes may now be expressions of policy, rather than prohibitions on use, there are some mandatory requirements about the application of those schemes. That was the effect of the decision in Weightman.
None of those decisions involved an application of s 3.5.13. In principle, the situation is analogous. Here, s 2.1.23 provides for the effect of City Plan:
“1. A local planning instrument is a statutory instrument under the Statutory Instruments Act 1992 and has the force of law.
2. A local planning instrument may not prohibit development on, or the use of, premises.
3. A planning scheme or a temporary local planning instrument can regulate a use of premises but only –
(a) Applying to use a code identified in the planning scheme or temporary local planning instrument; and
(b) If –
1.The use is a natural and ordinary consequence of making material change of use of the premises happening after the code took effect;
2.The making of the material change of use is assessable or self-assessable development.
4.(…)
5.(…).”
So, while a code can regulate but not prohibit development, the application of that code is mandatory.
Council’s Decision
Officers of the Council understood that they should act according to those powers. The minutes of the decision arrived at by the Urban Management Committee on 18 December 2002 (Ex 10) include a recital of the matters put before it, including the recommendation of the Development Assessment Committee.
Page 1 of the approval package records that the assessment of the application had been undertaken by a project team of three Council officers. In addition to an engineering officer and an urban designer, the team included a Miss Paula Moretti, described as “Assessment Manager – Development Assessment Team North.”
The decision of the Urban Management Committee contained some preliminary recitals, to this effect:
“(a) The Town Planner, Development Assessment Team North, reports that an application has been submitted by Bachrach (describing this application).
(b) The Town Planner adds that the application was code assessable with no formal public notification required under IPA. Section 3.5.4 of IPA provides that for code assessable applications the Assessment Manager must assess the application only against the applicable codes and the common material.
(c) The Town Planner advises that the Development Assessment Committee considered the application on 12 December 2002, and it was recommended that the Council approve the application as requested, subject to reasonable and relevant conditions.
(d) The Town Planner therefore recommended that the application be approved subject to reasonable and relevant conditions, and the Committee agreed.
(e) The application was code assessable and required no formal public notification.
(f) Pursuant to s 3.5.4 of IPA, it has been assessed against the applicable codes and the common material.
(g) The Council is required by s 3.5.11(1) of IPA to approve the application subject to reasonable and relevant conditions.” (emphasis added)
The Council –
(h) Upon consideration of the application, the relevant codes and common material… and those matters set forth in s 3.5.4(1) of IPA considers that … the proposal is considered to comply with the relevant applicable codes under the existing planning scheme.
(i) Accordingly, considers that were the development to accord with Council’s development requirements ensured through the imposition of reasonable and relevant conditions, it would be appropriate that the proposed development be carried out on the subject land … The Council approves the application referred to above subject to the conditions submitted … .”
No doubt the error in para (g), saying the Council is required to approve the application subject to reasonable and relevant conditions, can be overlooked as a slip – no submission was made about it. The approval can be easily recognised as one made under the above paraphrase of s 3.5.13(4)(a) and (b) - compliance with the code has been achieved by the imposition of conditions.
There is some documentary evidence showing how Council reached its decision. No witness was called by any party, on that issue. It is necessary to pay close attention to the documents. It is easier to draw inferences from the documents because no other evidence was given about the decision-making process.
The recommendation of the Development Assessment Committee is in precisely the same form as the following decision of Council – apart from the fact that the former refers to a recommendation, while the latter refers to a decision. The recommendation was signed by Miss Moretti, described as “Town Planner, Development Assessment Team West” and also by another officer.
A “Report and Recommendation on Development Application” by the town planner is in evidence. It is dated 17 December 2002 (the day before the Council’s decision). The bottom of its first page also bears the date 12 December 2002. Bearing in mind the recitals of the recommendation and the decision, the inference is that the Town Planner’s report was before each committee. It also bears a stamp which appears to contain a handwritten file number, which is unexplained. The stamp says “Council’s Delegate” - which was the role of the Urban Management Committee.
Her report made reference to two other documents which are also in evidence. Both are the reports from the Council’s architect. Para 7.3 of her report says that the proposal has been assessed by the team architect.
It should be inferred that her report had a substantial influence on the two committees to which it was presented.
The Town Planner’s Report
The town planner’s report appropriately discusses the site details, the proposal, area classification and land use and locality, provisions of the planning scheme, the Local Area Plan and the intents of the two precincts. She then offers a view about compliance with the LAP:
“The proposed development incorporates a scale and distribution of retail, office and residential development that is not entirely consistent with that envisaged in the LAP development principles and precinct intents. The retail component comprises 5,400m2 of floor space and extends across most of the site, including that part in the Office/Business Precinct. This goes beyond the small scale specialty shopping intended to be contained in the Nundah Village Precinct and potentially goes against the principle of Toombul Shoppingtown remaining the focus of retail activity in the Centre. A large part of the residential component is located in the Office/Business Precinct while there is no reference to residential uses in the intent for this Precinct. The proposal also places its office component within the Nundah Village Precinct rather than the Office/Business Precinct.”
She later observes that the proposed development complies with most of the Performance Criteria and Acceptable Solutions. She does say that the proposal fails to comply with the Acceptable Solution for building height which is four storeys in the Nundah Village Precinct and six storeys in the Office/Business Precinct:
“The proposal as lodged involved building heights up to 13 storeys. Since that time the building has been reduced to a maximum of 10 storeys. Given the development in MP2 Centres is limited to 10 storeys and the Council consistently enforces a limit of 10 storeys outside the CBD, a condition will be imposed requiring that the building height be reduced to comply with the maximum height of 10 storeys above ground (including any part levels more than 50% above ground which are counted as a storey) …”.
After taking into account some other appropriate matters, and the relevant codes, she says that the proposal “has been assessed against these codes and generally complies”. Finally, she supports the proposed development saying:
“The extent of non-compliance with the LAP is not considered to be sufficient to warrant refusal of the application, particularly having regard to recent planning intentions for the area
…
The proposed development is consistent in its mix of land uses and overall scale and density with the Council’s current planning intentions for the area …”.
Her formal recommendation is that “the application be approved in accordance with the specified drawings and subject to the conditions set out in the attached approval package”.
The report raises two issues which are of interest here. First, what part of IPA was being considered? Secondly, what other matters were taken into account?
The report accurately notes, in para 4.0, that IPA requires the assessment manager to assess the application only against the applicable codes and the common material. It then goes on to mention the effect of s 3.5.13(2) and (3), rather than 2.5.13(4):
“The assessment manager’s decision may conflict with an applicable code if there are sufficient grounds to justify the decision, having regard to the purpose of the code. However – (b) … the assessment manager’s decision must not compromise the achievement of the desired environmental outcomes for the planning scheme area.”
Then, having mentioned that the proposed development is “not entirely consistent with that envisaged in the LAP development principles and precinct intents”, and that the proposal fails to comply with the acceptable solution for building height, the author reaches the conclusion:
“… The extent of non-compliance with the LAP is not considered to be sufficient to warrant refusal of the application, particularly having regard to recent planning intentions for the area.”
In para 10.0, the report then offers a number of reasons why the proposed development “is consistent … with the Council’s current planning intentions for the area”.
Overall, it can be seen that the planner was making a recommendation under s 3.5.13(2) and (3), rather than 3.5.13(4). Nowhere does she say that the application complies with the code. Rather, by mentioning a number of reasons in favour of the development, she appears to have considered reasons to justify the application, notwithstanding the non-compliance. In that case, three things might be noticed. First, in saying “the extent of non-compliance with the LAP is not considered to be sufficient to warrant refusal of the application …”, she reverses the effect of the statutory provision which directs attention to the possibility of there being sufficient grounds to justify the decision. That remark was made in the context of dealing with letters from the public, particularly Westfield, who objected to the application. Her turn of phrase strongly suggests that she was posing the wrong question.
Secondly, she had regard to “recent planning intentions for the area”. That is contrary to s 3.5.13(2), which requires that regard should be had to the purpose of the code. Indeed, the use of the expression “have regard to”, is significant. In this context, it means that the purpose of the code is to be taken as the focal point, or a fundamental element in, the decision-maker’s consideration of the application. It is to be more than one among a number of factors. See the decision of the NSW Court of Appeal in Zhang v Canterbury City Council (2001) 51 NSWLR 589, and compare the decision in Ballymont v Ipswich City Council (2002) QCA 233.
If that statutory requirement is obeyed, it directs attention to the code’s purpose –
“- - - to ensure that development in the Local Plan area is consistent with the development principles and precinct intents of the Local Plan. That is a reference to paras 2.3 and 2.4 of the development principles, and the intents of the precincts at s 3.2 and 3.3 – all set out above. It can be seen, therefore that the planner did not follow the required approach, in considering the “sufficient grounds” aspect of her report.
Thirdly, that process of reasoning is not reflected in the recommendation to Council, and in the final decision of Council. In each case, the formal resolution is that the proposal is considered to comply with the relevant applicable codes under the existing planning scheme.
It is necessary to consider the matters that she took into account, in coming to her decision, and making a recommendation. The report contains these observations:
Para 5.3“The LAP was first introduced when City Plan came into force in October 2000. Since that time, for a number of reasons, the Council’s planning intentions for Toombul-Nundah Centre have been further refined to envisage a larger retail and residential component across the entire site as an appropriate response to the Centre’s longer term needs and potential. In particular:
· The Sandgate Road Bypass and Suburban Centre Improvement Projects have recently been completed; these projects involved a significant public sector investment which has raised the profile and amenity of the area and its potential to grow and consolidate as a focus for Centre activities;
· There is an increasing recognition of the area’s accessibility in terms of public transport facilities and proximity to one of the largest areas of medium density residential classified land outside the inner city (North Eastern Railway line) which justifies a higher order of retail facilities and intensity of development overall;
· The subject site has emerged as a key redevelopment site being the only large presently under-utilised site available for a major project which would provide a significant economic stimulus to revitalisation of the whole Centre;
· A full-line modern supermarket is seen as an important anchor to the range of smaller shops and services required to serve diverse community needs, a leading supermarket operator has expressed interest in locating the area, and the subject site is the only site with adequate dimensions to accommodate a full-line supermarket of 3000+m2 and
· It is recognised that higher densities of residential development would provide a greater market to support the long term viability of shops and services on the site.
The Precinct intents in the LAP have been somewhat overtaken by the direction of Council’s more recent planning for the area.
…
A height of 10 storeys is considered acceptable, despite the limits set in the LAP. As discussed earlier the intentions expressed in the LAP have been somewhat overtaken by more recent planning for the area which envisages a greater scale and intensity of development, including residential development. The proposed building heights are not inconsistent with the scale of development now envisaged and City Planning Branch have indicated support for the proposed heights.”
The above observations are those which lead to the references, (in paras 8.0 and 10.0 of her report) to Council’s recent, or current, planning intentions for the area. They appear to be the grounds put forward to justify this decision, despite non-compliance with the code. The author also refers to an assessment by the Team Architect. See para 7.3. In his memo of 3 December 2002 (Ex 8 the second paragraph), the architect appears to apply the general MP2 maximum height of 10 storeys, to this development. That is incorrect, as that general provision gives way to the local plan, which requires a maximum of eight storeys.
Reviewing Council’s Decision
This is not an appeal. The court has no power to consider the merits of the development proposal. Rather, the declarations sought require this court to look at the effectiveness, or otherwise, of Council’s decision making process. It was accepted here that this court’s declaratory powers could be used for that purpose. It has been done before. In Eshenko v Cummins (2000) QPELR 386, the court had to consider an allegation that a house had been built in an unlawful way. In principle, it was held that:
(a) Proceedings with respect to relief under the declaratory powers are analogous to judicial review proceedings. The court is not directly concerned with the merits of the approval, but rather must consider whether the approval was validly given.
(b) The onus of establishing invalidity rests with the applicant.
(c) It is not open to the court to substitute its own opinion for that of the Council unless the Council approval is shown to have been (in that case) unjustifiable, based on irrelevant considerations or one that no reasonable Council could have granted.
For similar uses of the declaratory power, see the decisions of this court in Clayton v Miriamvale Shire Council and Webb (2000) QPELR 320, Queensland Investment Corporation and Longhurst v Gold Coast City Council (2001) QPELR 83 at paras 8 and 29; Lyons v Misty Morn Developments Pty Ltd (1998) QPELR 268; Kewlands Pty Ltd v Logan City Council (1998) QPELR 44 and Emerald Developments (Aust) Pty Ltd v Brisbane City Council, P & E Court of Queensland, D4197 of 2002, judgment 11 November 2002.
This court is not a planning authority. It has no power to set aside the decision of Council, and replace it with its own opinion. It can only set aside a decision of Council if that is a result compelled by law. Usually, if a decision is set aside, the matter will be referred back to Council for further consideration, according to law. In very rare cases, where the end result is inevitable, there can be a direction to decide the application as the court directs. See Aronson and Dyer, Judicial Review of Administrative Action (2nd Ed 2000) at p 134.
Here, Westfield’s attack on Council’s decision was based on some established principles of administrative law. It asserted that Council had either asked itself the wrong question, or took into account irrelevant considerations, or reached a decision which no reasonable Council could have reached on the facts before it. Those principles are dealt with extensively in the standard texts on administrative law. For the present purposes, it is sufficient to illustrate them by referring the remarks of Sir Harry Gibbs of the High Court of Australia in Buck v Bavone (1976) 135 CLR 110 at 118:
“It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously.
Moreover, a person affected will obtain relief from the courts if he or she can show,
·that the authority has misdirected itself in law;
·or that it has failed to consider matters that it was required to consider;
·or it has taken irrelevant matters into account.
Even if none of those things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.
Where the authority is required to be satisfied of the existence of particular matters of objective fact, the position may be very different. It may then be possible to show clearly not only that the material facts existed but that an authority act in accordance with its duty could have reached no other conclusion than that they existed.”
See also to the same effect, the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusef (2001) 75 ALJR 1105:
“[82] It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia,[1] if an administrative tribunal (like the Tribunal)
“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it”.
“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive.[2] Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
[1](1995) 184 CLR 163 at 179.
[2]cf Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52.
What materials should the court look at, when an attack is made on the decision itself? Should the court look just at the actual decision (Exhibit 10) or should it look at the things which it took into account – such as the town planner’s report?
The correct approach can be found in the decision of the New South Wales Supreme Court in Dunlop v. Woollahra Municipal Council (1975) 2 NSWLR 446 at 484-5:
“Both parties agreed that, in scrutinizing the council’s actions, I should have regard, not only to the terms of the resolutions passed by council, but to the past history of consideration of the land in question, and of the reports to council by its officers and committees which were before the council when it made its decisions. … If the corporate mind can only be read in the corporate resolution and action corporations would be largely immune from judicial control of administrative abuse. Corporations must be held responsible through those who act on their behalf, whether an act is performed by one person or by a number. Doubtless there may be problems of mixed motives as between individuals, as indeed there often are with an individual but it is better for the courts to grapple with the true facts, however difficult this may be, than to shut out the realities of corporate action by arbitrary rules of evidence.
This case was argued in terms of the council’s desires, council’s intentions, council’s purposes, council’s motives, council’s beliefs and council’s mind. I will use these terms as courts have always done; as convenient short hand for the conclusions I draw from a considerations of the processes which led to the council’s decisions. Most of the material is in the form of reports of council officers, which, in the absence of any indication to the contrary, may reasonably be inferred to have been the basis of council resolutions, and, therefore, supply a basis for attributing to the council the intentions, purposes, motives, beliefs and state of mind revealed therein.”
Those words with respect to the sharing of knowledge among a group of people, were approved by the High Court in Krakowski v. Eurolynx Properties Ltd (1995) 183 CLR 563 in the joint judgment of Brennan, Deane, Gaudron and McHugh JJ at 583.
A decision of the Full Court of Queensland illustrates the proposition, that it is necessary to look at all the known facts which influenced the final decision, rather than just looking at the formal processes which led to that decision. In R v. Brisbane City Council; ex parte Read [1986] 2 Qd.R. 22, the Council had entered into an improper agreement with a developer who was seeking the rezoning of land. It was found as a fact that the final decision of Council was wrongly influenced by the existence of the agreement. Mr. Justice Thomas (with whom Mr. Justice McPherson agreed) put the matter this way (from p.34):
“The fact that some separate consideration appears to have been given to separate parts of the overall proposal after mid-1983 is hardly surprising, and means very little in the overall picture of has happened between Pioneer and the Council with respect to what the present quarry application. The Council has many officers and many organs and not all of them work to the same end or have knowledge of arrangements made by others. But when the above sequence is looked at overall it is plain that a broad consensus was achieved at a relatively early stage between Pioneer and high ranking council officers and that this was maintained and formally approved by the council in March 1983. Thereafter every decision taken by the council can be seen as an implementation of the agreement. It is inescapable that the council’s actual determination concerning the quarry was substantially influenced by it.
…
For some of the relevant period some of the officers of the council recognised the need for the separate matters to be dealt with separately and that the proper motions had gone through.
…
It was inevitable that separate files would be maintained and that the normal processes would have seen to have been followed. But one or even two swallows do not make a summer.
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In the fact of this history, the evidence that the relevant applications were processed through separate channels fails to stem the tide.”
Jurisdictional Facts
It was submitted on behalf of Westfield that s.3.5.13(4) meant that the Council could only deal with the application if a “jurisdictional fact” existed – that is, the existence of its satisfaction about compliance with the code.
To understand the submission, and its possible impact, it is necessary to understand the essential features of the concept of jurisdictional fact:
(a) A jurisdictional fact is a fact that is an essential preliminary or essential condition, or condition precedent to the decision making process, before the council can consider the application. So, a jurisdictional fact can be contrasted with a fact that is merely to be decided upon in the course of the inquiry.
(b) To take a simple example – suppose that no application could be made to council in a certain factual situation, such as the height of a building. That height is purely a question of fact. If that test is not satisfied, then there is no power in the council to consider the application. The existence of the appropriate height is a jurisdictional fact.
(c) The distinction has an impact on the power of this court to review the council’s decision. If a jurisdictional fact is involved, then this court would have to consider the correct answer for itself. However, if the finding is merely one given within jurisdiction on the merits of the case, then it is much more difficult for the court to review the conclusion.
If the satisfaction of council is a jurisdictional fact, then evidence about that fact can be considered by this court, to see if it exists or not.
(d) The provisions of IPA, particularly s.3.5.13(4), have to be considered. It is a matter of statutory construction as to whether a jurisdictional fact is involved, or whether it is merely a finding of fact in the course of the council’s decision process.
(e) There will often be a number of considerations which point one way or another. If the statutory formulation requires a finding of fact involving the mental state of the primary decision maker (such as its opinion, belief or satisfaction), the construction is often against a conclusion of jurisdictional fact (other than in the sense that the mental state is a particular kind of jurisdictional fact).
(f) It is usually important to see whether the factual inquiry occurs in the statutory formulation of a power to be exercised by the council, or in some other way necessarily arises in the course of the consideration by that decision maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact.
(g) Where an impact statement, or a report, plays a critical role in the quality of the decision making process, that makes it more likely that Parliament intended that such would be an objectively ascertained and essential step – that is, a jurisdictional fact.
(h) If the finding involves a matter of judgement, that suggests that it is less likely to be intended by Parliament to be an objective fact because it is a matter on which reasonable minds may differ.
It was submitted on behalf of Bachrach that no jurisdictional fact arose here. It was said that non-compliance with the Code, with or without the imposition of conditions, was a fact to be objectively established before the Council’s discretion arose under s.3.5.13(4). The reference to “satisfaction” was significant. Satisfaction, or the absence of it, was to be reached as part of the usual decision making process entrusted to the council, and was not some matter which is preliminary or ancillary to the Council’s assessment of the application. It was further submitted that the idea of a jurisdictional fact in this case would undermine the distinction between appeals on the merits and reviews involving questions about how the Council proceeded.
Likewise, it was submitted that s.3.5.13(2) did not raise a question of jurisdictional fact, as its operation only arises if council is satisfied that development does not comply with the Code, even with conditions.
In my opinion, the submission for Bachrach should be accepted. Section 3.5.13 does not contain a need for a jurisdictional fact to be established. Rather, it refers to a fact which has to be considered by the council in the course of its decision making process. It should also be noted, that approval will be the usual course, unless Council is satisfied that compliance cannot be achieved.
(The above statements of principle about jurisdictional facts are based on the comprehensive judgment of the Chief Justice of NSW in Timbarra Protection Coalition Inc v. Ross Mining ML (1999) 46 NSWLR 55.)
The Validity of the Decision
The Planner’s references to the Council’s recent planning intentions may be factually accurate, but they were impermissible to the extent that compliance within the code was being considered. Counsel at the hearing did not attempt to support them. The reason is clear. The provisions of City Plan, and its codes, are binding on the Council itself as much as on members of the public. The statutory provisions say that the application will be considered only against the applicable code, and common material.
It is true that in some cases a planning authority (and this court) can look at planning intentions in addition to those in the planning scheme. For example, a proposed amendment to the planning scheme, which has been made public, might be taken into account. That is the well known Coty principle.
Here, the matters taken into account seem to include some private views of the Council, or of its officers, or of the planner herself. There is nothing to indicate that such views were accessible in any way to anyone outside Council. In the case of code assessment, where there is no appeal, it is important that the statutory requirement on local authorities, to consider applications against the provisions of the codes, be strictly observed. If not, the expectations of all those who rely on the provisions of IPA and planning schemes will be subverted in ways which they may well know nothing about.
Such additional considerations may be taken into account, if s 3.5.13(2) and (3) are being applied – are there grounds to justify the decision, even if there is non-compliance? As explained above, the town planner did not follow the statutory requirement “to have regard to” certain fundamental matters.
It follows that the decision making process has miscarried in two respects. First, significant but irrelevant considerations were taken into account, if Council was considering compliance with the code (as its decision asserted). Secondly, the planner had asked herself the wrong questions, even if those wider grounds were permissible in considering the application despite conflict in the code.
For those reasons, the decision of Council is invalid, and must be set aside. Usually, the court will order the Council to reconsider the matter, according to law. However, it was submitted for Westfield that the application should be disposed of in this court, as there was only one available answer – that is, that the application must be refused, and Council should be directed to give that refusal.
It is true that there are substantial arguments which can be marshalled against this development proposal. They are collected together in the report of Mr Buckley, the town planner, who expressed the view that there was no compliance with the performance criteria of the code, nor sufficient grounds to justify the approval. His significant criticism can be summarised this way –
· at 10 storeys it exceeds the maximum allowable height by four storeys, the proposal is by its large use, scale and intensity inconsistent with the function of either of the precincts (which mention the need for a set of activities “at a scale in keeping with the traditional build, form and character of the Sandgate Road and Station Street shopping strips and provide for commercial buildings in the Office Precinct);
· there is a lack of integration of the proposal through its oversize scale and form, its lack of shopfronts to Buckland Road and its limited provision of important pedestrian connections.
· the presence of a full line supermarket within the office/business precinct is contrary to the planning requirements.
It may also be noted, that the town planners for Bachrach first approached the Council by proposing several amendments to the Local Plan Code, to facilitate this development. Those amendments would have removed some of the most obvious objections – such as those made by Mr Buckley.
On the other hand, another experienced town planner, Mr Schomburg, expressed the view that the code was sufficiently complied with, and, in any event, the proposal should have been approved under the “sufficient grounds” power. Bachrach also obtained support from Mr Dimasi’s report, dealing with the need for such a development.
It must also be kept in mind that these review proceedings were not really adapted to the court being able to reach a view of the full merits, or lack of merits, of this proposal. Neither town planner, nor Mr Dimasi, was cross-examined. Ms Moretti was not called as a witness. No effort was made to disentangle any valid town planning reasons which may have been contained in her report, to support the proposal on the basis of sufficient grounds.
Any more detailed consideration of the planning merits of this proposal would result in only one conclusion – it remains a matter to be considered by Council. It may well be that there are substantial obstacles in Bachrach’s path, especially the proposed height of 10 storeys and the need to have regard to the purpose of the Code. But those things are not for the court to pronounce upon on this occasion.
Counsel should make submissions about any appropriate order. Subject to those submissions, there will be a declaration that Council’s decision of 18 December 2002 is invalid, and should be set aside. The application is remitted to Council, to be dealt with according to law.
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