Wheeler v. Brisbane City Council & Ors ; Ken Ryan & Associates Pty Ltd v Brisbane City Council & Ors
[2007] QPEC 19
•9 February 2007
DISTRICT COURT OF QUEENSLAND
CITATION:
Wheeler v Brisbane City Council & Ors;
Ken Ryan & Associates Pty Ltd v Brisbane City Council & Ors [2007] QPEC 019
PARTIES:
BD676/04
KEN RYAN & ASSOCIATES PTY LTD
(Appellant)v
BRISBANE CITY COUNCIL
(Respondent)And
JOHN ROBERT WHEELER, and others
(Co-Respondents)______________________________________
BD2708/06
JOHN ROBERT WHEELER
(Applicant)v
BRISBANE CITY COUNCIL
(Respondent)And
CAMPAK CONSTRUCTIONS PTY LTD
(First Co-Respondent)And
KEN RYAN & ASSOCIATES PTY LTD
(Second Co-Respondent)FILE NO/S:
File No. 676 of 04 and 2708 of 06;
DIVISION:
Planning and Environment
PROCEEDING:
Application for determination of preliminary point (BD676/04);
Originating application for declarations (BD2708/06)ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
9 February 2007
DELIVERED AT:
Brisbane
HEARING DATE:
17 November 2006
JUDGE:
McLauchlan QC DCJ
ORDERS:
Originating application for declarations refused.
Application for determination of preliminary point decided in favour of co-respondents to appeal.
CATCHWORDS:
PLANNING – PLANNING LAW – application for declarations concerning code assessment and decision of respondent Council – deemed refusal – whether such declarations can be made – futility – whether co-respondents can challenge code assessment (Demolition Code) by respondent Council in appeal – Adrian di Marco v Brisbane City Council & Ors [2006] QPEC 035; Cox v Maroochy Shire Council [2006] QPEC 051
Integrated Planning Act 1997 s 3.5.13, 3.5.14, 4.1.21(1)(a). 4.1.28(1)(a), 4.1.43
COUNSEL:
Mr J. R. Wheeler self represented for the applicant
Mr T.N. Trotter for Brisbane City Council
Mr S. Fynes-Clinton for Campak Constructions Pty Ltd and Ken Ryan and Associates Pty Ltd
SOLICITORS:
Brisbane City Legal Practice for Brisbane City Council
Robert Bax and Associates for Campak Constructions Pty Ltd and Ken Ryan and Associates Pty Ltd
[1] On 20 August, 2003, a development application was made by Ken Ryan & Associates Pty Ltd, on behalf of Campak Constructions Pty Ltd as owner of the land, for the purpose of constructing 4 new dwelling units on a property at 97 Sylvan Road, Toowong. The application involved building work, comprising demolition of an existing residence on the site, and a material change of use to establish the new residential units. Under City Plan the demolition aspect of the development application is code assessable development, the only applicable code being the Demolition Code. The material change of use aspect is impact assessable. An Acknowledgement Notice was issued on 29 August, 2003, and Public Notification took place between 4 September, 2003 and 26 September 2003. Submissions were lodged, and in February, 2004, Ken Ryan & Associates Pty Ltd filed an appeal against a deemed refusal by the respondent. In March, 2004, a number of submitters to the development application filed Notices of Election to become respondents to the appeal.
[2] In May, 2006, directions were made in the appeal, which required the respondent and co-respondents to advise the other parties “whether they assert that the appellant’s development application should be refused or approved”. In response to that, the respondent Council wrote to the other parties informing them that it would assert in the appeal that the development application should be approved subject to conditions. The submitters were also put on notice by the legal representatives of the Campak parties that those parties considered that the submitters had no legal ability to argue matters concerning the demolition (code assessable) aspects of the development application in the appeal. An originating application for declarations concerning the assessment manager’s application of the Demolition Code in the assessment of the development application was filed in September, 2006, by Mr Wheeler, who is also one of the named co-respondents to the deemed refusal appeal.
[3] It would appear, although it is not conceded, that the application for declarations brought by Mr Wheeler on behalf of the co-respondents to the appeal is a response to the two communications referred to above. There is no longer any dispute between the appellant and the respondent Council, and no effective action is now available to the co-respondents in the appeal if they are not able to argue in that proceeding matters going to the application of the Demolition Code to the development application, which is the only matter of which they complain, unless they can raise such matters outside the appeal.
[4] Although there appears to be no formal record of the matter, it is common ground that an order was made in this court for the hearing of the originating application together with a preliminary point in the appeal, to determine whether or not the provisions of IPA in fact preclude the submitter respondents from arguing the code assessable aspect of the development application in the appeal.
[5] The originating application seeks the following declarations :
1. A declaration that the development the subject of the development application made by Ryan to the Brisbane City council on 20 August 2003 is in conflict with the Demolition Code of the Brisbane City Plan 2000.
2. A declaration that, upon the proper construction of the Demolition Code of the Brisbane City Plan 2000, and in view of s.3.5.13 of the Integrated Planning Act 1997, the application made by Ryan must be refused.
[6] The grounds of the application are that the development application fails to comply with the performance criterion applicable to residential buildings, and in particular fails to meet any of the stated acceptable solutions. Further, it is said that the proposed development does not meet the stated purpose of the Demolition Code with respect to residential buildings, so that subsection (3) of section s 3.5.13 cannot assist the appellant.
[7] The originating application relies on the provisions of s.4.1.21(1)(a) IPA, which provides that any person may bring proceedings in the court for a declaration about a matter done, to be done or that should have been done “for this Act” other than a matter for chapter 3, part 6, division 2. What is complained of is the assessment of the development application by the respondent Council against the Demolition Code. It appears to me that the expression “for the Act” is apt to extend to anything required, permitted or contemplated by the Act. Code assessment by an assessment manager is certainly, in my opinion, such a thing. However, I accept the submissions on behalf of Council and the Campak parties, that the section does not permit a declaration dependent upon an examination of the merits of the assessment called in question. It is sufficient to refer to 2 decisions of Skoein SJDC in Adrian Di Marco v. B.C.C. & Ors [2006] QPEC 035 and Cox v. Maroochy Shire Council [2006] QPEC 051 with respect to that aspect of the matter.
[8] Mr Wheeler states in his affidavit –
“I allege that the Brisbane City Council erred in reaching the conclusion not to refuse the Development Application of Ryan & Associates Pty Ltd…….on the basis of failing to comply with the Demolition Code of the Brisbane City Plan 2000. It is my firm belief that the Council 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.” and
“This application is limited to scrutiny of the previously made assessment by the Brisbane City Council against the Demolition Code whereas ‘An appeal is by way of hearing anew……’”.
[9] Notwithstanding the curiousness of the language used, it is clear that the complaint so stated, is a complaint that the Council erred in approving the development application although it failed to comply with the requirements of the Demolition Code. In fact, the Council made no decision at all with respect to the development application, hence the deemed refusal appeal. As was submitted, the court is now the sole decision maker for that application. Even if the Council had made a decision, that decision would be of no force or effect once the de novo appeal jurisdiction of the court was invoked. The application for declarations in my view is misconceived, and must be dismissed. I agree, in any event, with the submission made on behalf of the Campak parties, that on the material before the court, it is impossible for the applicant to show that the demolition aspect of the development proposal is something which, as a matter of law against the background of proved facts, was legally incapable of approval.
I proceed to consider the preliminary point concerning the ability of the co-respondents to the appeal to agitate in that proceeding matters relating to the respondent Council’s code assessment of the development application under its Demolition Code.
The question of law for determination, as formulated by the Campak parties is as follows:
“Where a submitter is a party to an appeal instituted by a developer applicant, having become a party as a co-respondent under section 4.1.43(4) of IPA, may that submitter be heard in the appeal in relation to matters concerning the code assessable aspects of the development application, having regard to the position which would prevail in a submitter appeal by virtue of section 4.1.28(1)(a)?”
Section 4.1.28(1)(a) provides that a submitter for a development application may appeal to the court only against the part of the approval relating to the assessment manager’s decision under section 3.5.14 or 3.5.14A. For present purposes, this has the effect that a submitter may not appeal against the assessment manager’s decision on a code assessable part of the development application.
Section 4.1.43 applies to appeals under sections 4.1.27 to 4,1,29, and thus applies to appeals by applicants and submitters and certain other persons. Subsection (4) states that any submitter may elect to become a co-respondent to the appeal, and subsection (7) provides that the respondent and any co-respondents for an appeal are entitled to be heard in the appeal as a party to the appeal. This latter provision, in my opinion, means that any co-respondent, including a submitter co-respondent, is entitled to be heard on any issue in the appeal; and that is so, whether or not some accommodation may have been reached with respect to that issue by other parties to the appeal.
It is suggested that it would be illogical to debar a submitter from starting an appeal relating only to a code assessable aspect of the development approval, but nevertheless permit the submitter to be heard on that matter as a co-respondent to an appeal started by an applicant. That does not necessarily follow. The legislature might well be concerned to limit the number or types of appeal coming before the court, but not be prepared to limit the rights of a person who is a proper party to an appeal, merely because that person could not, himself, have instituted the appeal in question.
The argument is said to be one of substance over form. As indicated, I do not think that is necessarily so, but even if it were, I do not consider that is a sufficient reason to read into an Act something for which no express provision is made, which places a restriction upon the rights of a party to a proceeding before the court, and which is arguably contrary to an express provision of the legislation. Had the parliament intended to legislate for the result contended for by the appellant, it could easily have done so, and it has not.
The preliminary point is determined in favour of the co-respondents. This result provides a further reason for dismissing the application for declarations. There might possibly have been some utility in such declarations if the co-respondents to the appeal could not agitate the matters which concern them in the appeal itself, even though the decision of the assessment manager had lost all status once the appeal had been made to this court; but clearly such declarations are entirely lacking in utility when the matters of concern to the co-respondents can be argued in the appeal.
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