Wilhelm v Ipswich City Council (No 2)

[2010] QPEC 73

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Wilhelm v Ipswich City Council & Anor (No 2) [2010] QPEC 73

PARTIES:

Theresia Wilhelm
(Appellant)

v

Ipswich City Council
(Respondent)

And

Parmac Investments Pty Ltd
ACN 106 378 205
(Co-respondent)

FILE NO/S:

2777/09

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

27 August 2010

DELIVERED AT:

Rockhampton

HEARING DATE:

18 June 2010

JUDGE:

Newton DCJ

ORDER:

It is directed that the acoustic experts retained by the appellant and co-respondent jointly formulate objective criteria to evaluate whether the 24-hour operation of the Service Station is acceptable during a trial period of six months.

COUNSEL:

Mr A N S Skoien for the appellant

Mr Quirk (solicitor-advocate) for the respondent

Mr Connor (solicitor-advocate) for the co-respondent

SOLICITORS:

NR Barbi Solicitors for the appellant

King & Company for the respondent

Connor O'Meara Solicitors for the co-respondent

1. The original hearing of this matter was conducted over five days on 15-19 March 2010 as an appeal against a decision of the respondent, Ipswich City Council (“the council”) to approve the subject development. The subject development can be shortly described as a “7 Eleven” service station and shopping centre with hours of operation that facilitated convenience shopping. On 28 May 2010 the Court delivered its judgment and made orders that the appeal be dismissed and the matter be adjourned to allow the parties to formulate appropriate conditions.[1] At a hearing on 18 June 2010 the parties indicated that they could not agree on a condition as to operating hours of the subject development, so it falls to the Court to determine the appropriate condition or course to be followed.

   [1]Wilhelm v Ipswich City Council & Anor [2010] QPEC 46.

1. The impetus for the reformulation of the condition as to hours of operation arose from the terms of the judgment. The appellant had raised the issue that the draft condition relating to hours of operation may be unlawful as it offended the finality principle. That judgment dealt with this issue (at p14, [37]):

“In my view [conditions 5(d) and 5(e)] can be redrafted to overcome any deficiency at a later stage as suggested in the written reply of the co-respondent to the submissions of the appellant.”

(It might be noted that the judgment did not, on its terms, express a concluded view as to the lawfulness of the condition and foreclose any argument that the condition should have remained as drafted. Regardless, all parties seemed to have treated the condition as requiring redrafting.)

1. The various proposed conditions at different times have been as follows:[2]

   [2] The conditions all additionally include a restriction on time for service vehicle access and operation on the site to 7.00am to 6.00pm. At no time has any party agitated for any alteration to this condition.

(a)        The original decision notice, dated 22 April 2009, provided that:

“The hours of operation for the Development shall be:

Sunday to Saturday 6.00am to 10.00pm…”[3]

[3] Appeal Book, Vol 2, p 602.

(b)        A later negotiated decision notice, dated 6 August 2009, and the decision notice subject to the appeal, provided for 24-hour operation of the Service Station and longer hours of operation for the Shopping Centre, but subject to a trial period and ‘sunset’ clause which effectively made the continuing permission for these extended hours conditional on further council approval after a trial period and evaluation at the end of that trial period. This condition was in these relevant terms:

“The hours of operation for the Development shall be:

The Service Station shall operate as follows:

Sunday to Saturday    24 Hour operation

The Shopping Centre shall operate as follows:

Sunday to Saturday    6.00 am to Midnight

…

(d) In accordance with Section 3.5.31 of the Integrated Planning Act 1997 and irrespective of condition 42 below, the above approved hours are valid for six (6) months from the date of the commencement of the use, after which time the hours of operation stipulated in part (f) of this condition will apply unless Council determines in writing in accordance with part (e) of this condition below, that the operation of the approved use has not imposed any adverse or unreasonable impacts on the surrounding residential uses and is compatible with the continued operation of the Business Use (Service Station) and Shopping Centre in accordance with the submitted noise report, then the extended operation hours may continue for a further period of time, as specified by Council.

(e) Prior to the expiration of the sunset period outlined in part (d) of this condition, the Developer shall submit to Council written representations seeking to further extend the sunset period indefinitely for the approved use. The written representations must include a log of all incidents, disturbances and complaints received by the developer or operator for the approved use for the time of the sunset period (i.e. 6 months) and written documentation outlining the method of addressing and resolving the events if any were experienced during this period.

(f) The hours of operation for the Development upon cessation of the approved sunset period (6 months) shall be:

Sunday to Saturday    6.00am to 10.00 pm.

…”[4]

[4] Appeal Book, Vol 2, pp 747-8.

(c)        Counsel for the appellant tendered at the hearing of 18 June 2010 a draft set of conditions circulated by the respondent’s solicitors on 3 June 2010, some six days after the delivery of the judgment on the appeal on 28 May 2010.[5] This draft set of conditions maintained the trial period and sunset clause contained in the negotiated decision notice.

[5] Exhibit A, for the hearing of 18 June 2010.

(d)        The condition submitted in draft conditions tendered to the Court on behalf of the respondent and co-respondent on 18 June 2010 removed the trial period and sunset clause. It was in these terms:

“The hours of operation for the Development shall be:

The Service Station shall operate as follows:

Sunday to Saturday    24 Hour operation

The Shopping Centre shall operate as follows:

Sunday to Saturday    6.00am to Midnight.

…”[6]

[6] Exhibit A, tendered at the hearing of 18 June 2010.

1. The parties do not consent to the relevant condition (condition 5), which leaves the matter for the Court’s determination. The imposition of conditions is, of course, a matter for the Court’s discretion.[7] Such discretion must of course be exercised judicially.

   [7]Hymix Industries P/L & Anor v Alberton Investments P/L & Anor [2002] QPELR 116; [2001] QCA 334, at p9 ([26]) (Atkinson J), and p3 [5] (Williams JA).

The appellant’s contentions

1. Counsel for the appellant made submissions that generally gathered into three heads of argument.

1. The first argument the appellant puts forward is that the judgment did not, properly understood, permit the uncertainty to be addressed simply by removing the sunset clause and requirement for a trial period for 24-hour operation. This would not be in conformity with the judgment itself.[8]

   [8] See transcript of hearing of 18 June 2010, p1-6, from line 30.

1. The second argument put for the appellant is that the newly proposed condition, to allow 24-hour operation without any trial period, would occasion unfairness on the appellants, and unfairness to any members of the public who may have challenged an unconditional 24-hour operational condition.[9]

   [9] See transcript of hearing of 18 June 2010, p1-9, from line 4.

1. A submission relevant to both arguments was also made that the entire appeal was conducted on the basis of a trial period for 24-hour operation and a sunset clause. It could be said to be a basis for the development proposal and formed the context in which the Court approved the development in substance by dismissing the appeal.[10]

   [10] Ibid, p1-6, from line 36.

1. A third argument put forward for the appellant is that there is a ‘jurisdictional bar’ on the condition proposed by the respondent and co-respondent. This arises from section 4.1.52(b) of the Integrated Planning Act which provides that the Planning and Environment Court:

“must not consider a change to [an] application on which the decision being appealed was made unless the change is only a minor change.”

Counsel for the appellant submitted that the proposed change to the condition amounts, in substance if not in form, to a change in the application itself as the attached conditions which included a trial period and sunset clause were part of the application. To contend for such a change to conditions is properly characterised as changing the application itself. Although not phrased as such, the submission can be understood to rely on the general principle that legislation, here the Integrated Planning Act, can be taken to intend that when something is prohibited by direct means, it also prohibits using indirect means to achieve exactly the same result.[11]

[11] See generally Harderan Pty Ltd v Logan City Council [1989] 1 Qd R 524 (Full Court), in particular at p528 (Matthews J, with Kelly SPJ and Vasta J agreeing): “[A trial judge was] following a form of practice which had been adopted in other cases in the Local Government Court, attempting to do, indirectly, that which he had no jurisdiction to do directly. By analogy, I would adopt what Evatt J said in Deputy Federal Commissioner of Taxation (NSW) v W.R. Moran Pty Ltd (1939) 61 CLR 735,793, when after reference to Attorney-General (NSW) v Homebush Flour Mills Limited (1937) 56 CLR 390, he said, “in that case, this Court applied the well-known principle that in relation to constitutional prohibitions binding a legislature, that legislature cannot disobey the prohibition merely by employing an indirect method of achieving exactly the same result.” (cited by Robertson DCJ in Ridgehaven Retirement Village v Caloundra City Council & Ors [2004] QPEC 002).

1. The appellant contends, ultimately, that the most appropriate course is to have the Court direct the acoustic experts retained by the appellant and the co-respondent jointly formulate objective criteria to evaluate whether the 24-hour operation of the Service Station is acceptable during a trial period. This would be in conformity with the basis of the development application as led in the appeal, remove the discretionary decision-making by council giving rise to any uncertainty in the condition, and is in conformity with the proposal which was notified to the public and the basis for public submissions and participation in the appeal process.[12]

   [12] See transcript of hearing of 18 June 2010, p1-9, from line 33.

The respondent’s contentions

1. The solicitor for the respondent council gave limited submissions, explaining that the council agreed to delete the trial period and sunset clause from the operating hours condition because the expert evidence adduced during the appeal hearing had, to its mind, addressed the very reasons for the trial period and sunset clause.[13] It should be noted that these submissions are not founded upon any evidence.

   [13] Transcript of hearing of 18 June 2010, p1-10, from line 10.

The co-respondent’s contentions

1. The solicitor for the co-respondent made submissions which can be summarised as follows. There was evidence which was accepted by the Court in relation to noise and particularly noise created by traffic levels. These findings in the judgment removed the basis for requiring any trial period and sunset clause and so any need for a trial period and re-assessment simply became ‘redundant’. Although it might have been surprising to deal with an uncertain condition by simply deleting it, the context of findings in the judgment generally meant that traffic noise concerns relating to hours of operation were no longer significant.[14]

   [14] Transcript of hearing of 18 June 2010, p1-18, from line 19.

1. The solicitor for the co-respondent further noted that another condition, condition 34, dealt with noise in considerable detail. It was emphasised that these conditions would run with the land and enforceable against any operator. The noise conditions in condition 34, together with the findings in relation to traffic noise, would satisfy the Court that dealing with the trial period and sunset clause had simply become unnecessary.[15]

   [15] Ibid, p1-16 from line 40.

Irrelevant considerations

1. Some attention was given at the hearing to inferences to be drawn one way or another from the fact that the respondent council had agreed the trial period and sunset clause was unnecessary, and the times at which it changed its position. It was in this context that a draft condition package circulated by the solicitors for the council was handed up (Exhibit A to the hearing of 18 June 2010). This showed that on 3 June 2010, months after the close of evidence, weeks after exchange of submissions and some days after delivery of the main judgment, council had not yet agreed the trial period and sunset clause should be removed. But little seems to turn on this.

1. Council’s reasons for removing parts of a condition may very well be relevant insofar as they arise from proper planning considerations. Likewise, any individual with a statutory right to bring an appeal before the Court is entitled to litigate such an appeal and agitate what planning issues they choose subject to the obligations on all litigants imposed by the any relevant procedural rules or practice directions.

First legal limitation – a ‘jurisdictional bar’

1. The solicitor for the co-respondent correctly pointed out that section 4.1.52(b), which prohibits a Court considering changes to an application which are not “minor changes” during the appeal process, does not, in its terms, confine the conditions that a Court can attach to an approval, as the proposed changes are changes to an “approval” and not to the “application”.

1. So much is so. But the gist of the complaint raised on behalf of the appellant seems to be that the purpose of section 4.1.52(b) would be frustrated if litigants could propose conditions which would result in changes to a development beyond “minor changes”, circumventing this limitation by not adding them to the application.

1. There is some force in this contention. Such a jurisdictional bar does not arise from an express prohibition contained in the terms of section 4.1.52(b) but in the legislative purpose expressed therein. This is that when the legislature intends for something to be prohibited by indirect means, here changing an application in a way that is not minor, it is also taken to prohibit achieving the exact same result by indirect means.[16] This purpose is that the approval process does not allow for the application to be changed part way through a proceeding other than in minor ways. This ensures that any non-minor changes sought are instead subject to, among other things, the public notification stages and a hearing on appeal. As counsel for the appellant noted:

   [16] See footnote 12 and cases cited there.

“Importantly, your Honour, what [the deletion of the trial period and sunset clause] does is it denies the people, the submitters who could've joined in the appeal challenging that condition, their right to come to this Court and say, ‘No, no, no.  If you - if you want this to get up, and we're not going to take an appeal saying you shouldn't, but if you want it to get up, you have your trial at 24 hours and if our local government then isn't satisfied that it should continue, you don't continue the 24-hour operation.’

… If your Honour were to allow the condition in the form that it is now proposed, your Honour will be denying people, this Court being a Court of public interest, denying the people the opportunity afforded by the Act.

Whether that means, in effect, your Honour that the condition of this nature and effects substantially changes the development so that it is now a unconditional 24-hour development, whether it's a minor change or not a minor change, really we don't have to get into those issues, in my submission.”

Second legal limitation – res judicata

1. In rejecting a submission that a judgment of a Planning and Environment Court does not give rise to res judicata Rackemann DCJ noted the following in relation to judgments of the Planning and Environment Court:

“The plea of res judicata applies, except in special circumstances, not only to points upon which a court was actually required by the parties to form an opinion and produce a judgment, but to every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have  brought forward at the time. See Port of Melbourne Authority v
Anshun Pty Ltd (1981) 147 CLR at 598, citing Henderson v Henderson.”[17]

[17] At p20 ([57]). An attempt had been made in that case by a litigant to suggest that because the Court’s decision stood in the place of an administrative decision by a local council that it followed that the Court’s decision was administrative also. Such a submission clearly failed to recognise the distinct character of a decision of a Court both arising from the nature of the judicial function and the terms of the relevant legislation that attached to a judicial determination of an application.

1. There has been a judgment in relation the appeal and it is no longer open for parties to traverse its findings or make arguments inconsistent with the terms of that judgment except by way of appeal. Indeed the conditions which may be annexed to an approval for development by this Court are conditions which bind or require performance by the applicant for development.[18] It is in relation to this principle that the submission of counsel for the appellant is apt:

“If there had ever been - wanted to be a challenge to the [trial period condition]… that ought to have been by virtue of an appeal.

Failure to do so and a failure to raise in the proceeding the issue in relation to changing that condition as present, means that everyone has been put at a disadvantage in the consideration of the matter and is inconsistent, in my submission, with your Honour's reasons for judgment.”[19]

[18]Harderan (see footnote 12) at p106.

[19] Transcript of hearing of 18 June 2010, p1-8 from line 41.

1. Against this proposition is that advanced by the co-respondent, which was that as the judgment accepted an expert opinion and thereby made a finding in these terms:

“[36] … Mr King was of the opinion that any change in noise level and character experienced by residents… will be minor and within the reasonable expectation of residents on local streets which provide through-access to Raceview Street as well as access to the existing local centre. I accept Mr King’s view in this regard...”[20]

It was also relevant that in relation to expected traffic levels between the hours of 10pm at night and 6am the following morning, the following findings were made:

“[44] … I further accept that the additional traffic generated by the proposed development… would be very low and probably no more than three per hour, which in traffic engineering terms may be said to be negligible. I do not accept that the increase in traffic flows… associated with the development will be marked and highly noticeable by residents.”[21] (footnotes omitted)

[20] Judgment, p14 ([36]).

[21]Judgment, p16 ([44]).

1. Counsel for the appellant in reply noted that:

“[A]ll of those observations of your Honour have to be in the context of the evidence in relation to the proposal which was before the Court, which was that there would be a 6 a.m. to 10 p.m. operation, but with a trial for six months.”[22]

[22]Transcript of hearing of 18 June 2010, p1-4 from line 37.

1. The completely orthodox statement as to the scope of res judicata then requires two separate questions to be answered:

1.          Was the removal of a trial condition a point on which the Court gave an ruling on, either expressly or by implication?

2.          If not, did the point properly belong in the subject matter of the matters to be dealt with through the main appeal hearing and which the parties, exercising reasonable diligence, should have bought forward at the time?

1. As to the first limb, the point is somewhat arguable. It is difficult to escape the express words which were used in the judgment which was that the condition should be redrafted. There was certainly never an agitation during the hearing of the appeal for a ruling as to whether the trial period could be eschewed completely.

1. Regardless, it seems strongly arguable that the second limb to the issue of res judicata applies. At no time, even in final written submissions in reply, had any party suggested otherwise than the trial period would operate in some way. As was noted at the hearing, findings which were made were always in the context of a 24-hour trial period.

1. The issues which have now been raised and dealt with in this second judgment highlight the reason for second limb of the principle of res judicata. That second limb acknowledges that when a point is not raised for the Court’s determination then serious difficulties can be created in ways that cannot be predicted and which are not obvious. When a Court is not asked to, and consequently does not, make specific findings in respect of issues not raised by the parties, both the Court and all parties are put in an avoidable but invidious position.

Discretionary matter – planning grounds

1. It was central to the co-respondent’s argument as to why the trial period and sunset clause should simply be deleted that the planning issues involved had simply been rendered nugatory by relevant findings summarised at paragraph 20 above. These planning considerations provided the reason for the Court to exercise its discretion to approve the development with the draft conditions that remove the trial period and sunset clause and instead provide for 24-hour operation on the site.

1. Counsel for the appellant made the fair point, though, that the merits of the disputed condition really cut both ways. If the respondent and co-respondent are correct about the minimal consequences of 24-hour operations then the trial period will represent no real impediment to the development. It is a temporary condition which creates a relatively small administrative burden but no effect on the development. There seems to be no reason that if the respondent and co-respondent seek to rely on certain estimations as to future traffic noise then they should not be put to proof on the issue. Certainly, as was submitted, no particular prejudice or harm could be identified and certainly none that would amount to an ‘unreasonable imposition’ on the development.

1. Neither were any submissions put that raised any concern about any particular impost being caused by the appellant’s proposition that the trial period and sunset clause condition should be redrafted by the parties’ experts to provide objective criteria for acceptable noise levels.

Discretionary matter – fairness

1. I accept that the Court must take into account possible unfairness in terms of potential submitters or potential appellants as relevant to a discretion to allow the deletion of the trial period.

Conclusion

1. In my view the appropriate course is to direct that the acoustic experts retained by the appellant and co-respondent jointly formulate objective criteria to evaluate whether the 24-hour operation of the Service Station is acceptable during a trial period of six months.