Wright v. Brisbane City Council & Anor

[2007] QPEC 67

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Wright v Brisbane City Council & Anor [2007] QPEC 067

PARTIES:

DIANE MARIE WRIGHT

Appellant

V

BRISBANE CITY COUNCIL

Respondent

and

LEDSETTER PTY LTD

Co-Respondent

FILE NO/S:

No 463 of 2007

DIVISION:

Planning and Environment

PROCEEDING:

Appeal – Preliminary Points

ORIGINATING COURT:

Brisbane

DELIVERED ON:

7 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

21 May 2007

JUDGE:

Rackemann DCJ

ORDER:

The appeal proceed to hearing notwithstanding the preliminary issues raised by the appellant.

CATCHWORDS:

Preliminary points – whether application properly made and notified – development over lot and common property – failure to refer to common property in application form – whether consent of all owners in community titles scheme required – whether proposed use properly described – where covering letter contained inaccurate reference to last day for receipt of submissions – s 4.1.5A

COUNSEL:

Mr A. Skoien for the appellant

Mr B. Job for the respondent

Mr M. Hinson SC for the co-respondent

SOLICITORS:

D. M. Wright & Associates for the appellant

Brisbane City Legal Practice for the respondent

Robert Milne Legal for the co-respondent

Introduction

1. By a notice of appeal dated 19 February 2007 this appeal was brought against the decision of the respondent to approve a development application, by the co‑respondent, for a development permit for a material change of use for a nightclub and for a preliminary approval for building work, in respect of land situated at Stanley Street, Woolloongabba.  The following points were set down for determination at a preliminary stage:

(1)That the application was not a properly made application; and

(2)The application was not properly notified.

1. The development application sought approval for Lot 1 on SP102439, being Lot 1 in the South Bank Chambers Community Title Scheme 25675 and part of the common property, being that part to the rear of Lot 1.  The other three lots in the body corporate are Lots 2, 3 and 4.  The appellant is the registered owner of three tenths of Lot 3.  The other seven‑tenths of that Lot is owned by a company of which the appellant is the sole director and secretary.  The southern boundary of Lots 1 to 4 front Stanley Street. The common property is situated between the northern boundaries of those lots and the frontage to Jacob Lane.

Was this application properly made

1. The appellant contends that the development application was not properly made because it:

(a)        did not include part of the common property;

(b)        did not include the consent of all of the individual lot owners; and

(c)        misdescribed the proposed use of the premises.

The last two of those points were described, by counsel for the appellant, as the key issues.

(i) Inclusion of common property

1. Development applications must be made in the approved form (s 3.2.1(1)).  The approved form must contain the mandatory requirements part including a requirement for an accurate description of the land (s 3.2.1(2)(a)).  “The Land” refers to the land the subject of the application (s 1.3.8(j)).

1. The mandatory requirements part of the approved form must be correctly completed if the application is to be a properly made application (s 3.2.1(7)(c)).  An assessment manager may refuse to receive an application which is not properly made (s 3.2.1(8)).  If however, the assessment manager receives and after consideration accepts, an application which is not a properly made application, the application is then taken to be a properly made application (s 3.2.1(9)), subject to some exceptions (s 3.2.1(10)).

1. The application was made under cover of a letter dated 24 March 2006 which annexed a report which, in turn, appended the IDAS application forms.  The requirement for an accurate description of the land, was dealt with in questions 1 to 9 in part A of the IDAS form1[1].  Question 1 called for a street address and there is no issue taken with the information which was provided.  Question 3 asks for a “Lot on plan description (e.g. Lot 123 on RP4567)/GPS Co‑ordinates”.  The description inserted at this item was “Lot 1 on SP102439”.  That is arguably inaccurate because it does not also refer to the part of the common property intended to be used.  I say “arguably” because, insofar as the question called for a “Lot on plan description”, the answer was arguably both accurate and complete, since, as Mr Hinson SC pointed out, the common property does not have a lot on plan description.[2]  

   [1]See Ex 2 Tab 11 Pg146.

   [2]See s 115B (2) of the Land Title Act 1994 and s 10 (2) of the Body Corporate and Community Management Act 1997 and ss 41A, 41B and 41C of the Land Title Act.

1. The reference, in the question, to “GPS co-ordinates” relates to advice given, on the face of the form, as to how applicants should describe land which does not have a lot on plan description.  In that event, applicants are advised to provide the lot on plan description for the adjoining/adjacent land or the GPS co‑ordinates where there is no adjoining/adjacent land.  In this case the part of the common property to be used is adjacent to the lot described in the application form.

1. Assuming there was non-compliance by reason of the description given in the IDAS form, I would readily exercise the discretion under s 4.1.5A to permit the Appeal to proceed notwithstanding the non‑compliance.  That discretion may be exercised where non‑compliance or partial compliance has not substantially restricted the opportunity for a person to exercise the rights conferred on the person by the IPA or another Act.  I am satisfied that is the case.

1. Any person, who might have had recourse to the application documents, would have had before them not only the IDAS form but also the report and covering letter.  The letter, dated 24 March 2006, contains a prominent box within which information is given as to the address, real property description, site area, area classification and the name of the owner.  The real property description is given as “Lot 1 & common property on SP102438 in the Parish of South Brisbane”.  Similarly, the accompanying report contains, in the very first section, “Site details” in which the land the subject of the application is described not only by its address but also by the description “Lot 1 & common property on SP102438: Parish of South Brisbane”.  It is highly improbable that anyone would have been materially misled, far less had their opportunity to exercise rights substantially restricted, by the description in the IDAS form, given the references in the material otherwise to the common property.  I also note that the public notice of the application referred to the common property.  Mr Skoien frankly conceded that “it would be a bit hard to say that rights have been restricted in respect of the misdescription of the land in the application itself”[3]. I am satisfied that it would be appropriate to make an order, pursuant to s 4.1.5A, permitting the appeal to proceed notwithstanding any non-compliance arising by reason of the answer given to question three in the IDAS form.

   [3]See T28.

(ii) Consent of Owner

1. Subject to certain exceptions, which are not presently relevant, each development application for a material change of use must contain, or be supported by, the written consent of the owner of the land to the making of the application (s 3.2.1(3)).  The appellant contends that the application was not properly made because it was not accompanied by the written consent of all of the individual lot owners, including the appellant.  The obligation to obtain the consent of the other lot owners was said to arise by reason of the proposal to use part of the common property.

1. That part of the common property which is intended to be used is, on the face of the current community management statement, an exclusive use area allocated for the owners and occupiers of Lot 1.  It was on this basis that, during the application process, the co-respondent asserted that the owner of Lot 1 was the “owner” for the purposes of the IPA[4].  It was submitted, on behalf of the appellant, that the exclusive use allocation did not give ownership but that, if it did, this Court’s decision ought to await the outcome of separate proceedings, presently pending in the Court of Appeal, in which the validity of the most recent community management statement is in issue.  Under the previous community management statement the area now given over to exclusive use of Lot 1 was previously allocated, in part, for the exclusive use of the owner of Lot 1 but, in part, for the exclusive use of the owner of Lot 2 and, in part, was not allocated to the exclusive use of any of the lot owners.

   [4]See p 255 of Exhibit 2.

1. Pursuant to s 41BA of the Land Title Act (LTA) and s 35 of the Body Corporate and Community Management Act (BCCMA) common property for a community title scheme is owned by the owners of the lots included in the scheme, as tenants in common, in shares proportionate to the interest schedule lot entitlements of their respective lots. An owner’s interest in a lot is inseparable from the owner’s interest in the common property.  Accordingly, for the purposes of that legislation, the owners of that part of the common property which is the subject of the co‑respondent’s development application are each of the owners of the lots in the scheme.  

1. The requirement in the Integrated Planning Act (IPA), for a development application to contain or be supported by the written consent of the owner is however, a reference to the “owner” for the purposes of the IPA rather than the owner for the purposes of the BCCMA and the LTA.  Schedule 10 of the IPA defines “Owner” as follows[5]:

“Owner of land, means the person for the time being entitled to receive the rent for the land or would be entitled to receive the rent for it if it were let to a tenant at a rent.”

[5]Section 1.3.1.

1. While, under the BCCMA and LTA, the common property is owned by the owners of the lots as tenants in common, that interest is inseparable from the owner’s interest in a lot, such that an owner cannot separately deal with or dispose of their interest in the common property[6].  Under the BCCMA the owners of lots are members of the body corporate for the community title scheme[7] and it is the body corporate which, pursuant to s 154, has a power to sell or otherwise dispose of common property and to grant or amend a lease or licence over common property in the way, and to the extent, authorised under the regulation module applying to the scheme.  Further, if the body corporate is authorised under the BCCMA, to enter into a transaction affecting common property, it may enter into that transaction and execute documents related to that transaction in its own name, as if it were the owner of an estate in fee simple in the common property (s 35(6)) and the body corporate may sue and be sued for rights and liabilities related to the common property, as if it were the owner of that common property (s 36(1)).  As was pointed out in the co‑respondent’s written submissions, that could include proceedings to recover rent owing under a lease of the common property.

   [6]See the example to s 35(3) of the BCCMA and s 41BA of the LTA.

   [7]Section 31 of the BCCMA.

1. Accordingly, while it is the owners of the lots who own the common property, as tenants in common, for the purposes of the BCCMA and LTA, it is the body corporate which is the entity which would be entitled to receive the rent for a lease of the common property, were it let to a tenant. It is the body corporate which, for the purposes of the IPA, is the “owner” of the common property.

1. It was submitted on behalf of the appellant, that the owners of the lots are also owners because they are also persons who would be “entitled to receive the rent”.  It was submitted, that while it may be the body corporate which would receive the rent from a lease of common property, the individual lot owners would nevertheless have an entitlement with respect to the monies so received. Reference was made to s 47(3)(b) of the BCCMA, which provides that the interest schedule for an entitlement for a lot is the basis for calculating the owner’s interest, including the lot owner’s share in body corporate assets, on termination of the scheme.

1. As Mr Hinson SC pointed out however, s 47(3)(b) of the BCCMA speaks of the lot owner’s interest on termination of the scheme.  If the common property were the subject of a lease, the rent received by the body corporate would be held by it as an asset of the body corporate.  Pursuant to the BCCMA, the body corporate holds the body corporate assets beneficially (s 45(1)) and has the power not only to acquire but also to dispose of body corporate assets (s 45(3)).  As Mr Hinson SC submitted, the prospect that an owner might subsequently receive a share of the body corporate assets, whether on termination or by distribution otherwise, does not lead to the conclusion that the lot owner is a person who would be entitled to receive the rent.  What the lot owner would receive is not rent in the owner’s hands, but rather a part of the body corporate assets.

1. I am satisfied that the owners of Lot 3 were not owners of the land the subject of the application for the purposes of the IPA.  For the reasons stated above, I accept Mr Hinson SC’s primary submission that it is the Body Corporate’s consent which was required with respect to common property.  Even if it was also necessary to go beyond that, to obtain the written consent of those who had exclusive use rights with respect to the part of the common property the subject of the application, then, again, the owner of Lot 3 would not be an owner, since no part of any exclusive use area held by it, either under the current Community Management Statement or its immediate predecessor, is the subject of the application.   

1. Ledsetter Pty Ltd, the owner of Lot 1, endorsed its consent at Item 20 of IDAS form 1 and the development application also was accompanied by minutes of relevant body corporate resolutions, with which no issue was taken.  If it were right to say that the consent of those with exclusive use rights over the land the subject of the application was also required and if, further, it was the previous Community Management Scheme to which regard was required to be had, then it might also have been necessary to obtain the written consent of the owners of Lot 2.  Those owners voted in favour of the relevant resolutions at the meeting of the body corporate, but their separate written consents were not obtained at the time the application was made.  They have subsequently provided a written consent.  I note that, while it is unnecessary, the owner of Lot 4 has similarly provided a written consent.  Had the application been deficient for want of a written consent from them at the time, then I would have exercised the discretion under s 4.1.5A, to permit the appeal to proceed notwithstanding[8]. 

   [8]It would not have been appropriate to use s 4.1.5A had the consent of the owner of Lot 3 been required, since that owner would have wished to exercise the right to withhold consent.

(iii) Description of the use

1. The IDAS form 1 part A requires a description of the proposed use of the land.  The approved form for public notification also provides for a description of the proposal.  The requirement for a description of the proposed use may be met by a simple description which accords with common usage[9].  Since the application is for a material change of use assessable development against the planning scheme, it was appropriate for the definitions in the planning scheme to be used to describe the proposal[10].

   [9]Pioneer Concrete (Qld) Pty Ltd v BCC (1980) 145 CLR 485 at 499, 508, and 510.

   [10]See s 10(1) of City Plan 2000 and Telstra Corporation Ltd v Pine Rivers Shire Council [2000] QPELR 241.

1. In this case, the proposal was described as a ‘nightclub’, which is not only a word of ordinary parlance but also one which is defined in City Plan.  The term’s ordinary meaning accords with the definition which appears in the Macquarie dictionary, namely: “a place of entertainment, open until late, offering food, drink, cabaret, dancing etc.”  It is defined in the City Plan as follows:

“A use of premises for listening and/or dancing to live or recorded music by the general public, predominantly during the night hours.”

1. The proposal involves the provision of musical entertainment to the general public predominantly in the hours after dark[11]. The proposal plans show a stage.  The application documents make it clear that it is intended, during the operating hours, to provide musical entertainment and describe the proposal as being for entertainment purposes[12].  The application was accompanied by an expert acoustic assessment with respect to the suitability of the premises for amplified music.  The recommended internal noise limit was said to allow for the forms of music proposed for the venue, which were described as “lounge, funk, jazz, chill, dance”. 

   [11]The report accompanying the application stated that the establishment would not open until after 4pm (Ex 2 Tab 11 p15 of Exhibit to Affidavit of Harvey) the affidavit of Mr Harvey states that it is intended to trade to 3am.

   [12]See Ex 2, TAB 11 pg 20.

1. The appellant’s contention that the proposal was misdescribed focuses upon intended activities which are not expressly referred to in the City Plan’s definition of a nightclub, namely the provision of food and alcohol to patrons.  The plans show a bar and a modest food preparation area at the ground level, and “alfresco seating” in the courtyard at the rear.  The report accompanying the application refers to alfresco dining and the sale and consumption of alcohol on the premises.  The affidavit material suggests that the food service will include light tapas style meals[13].  It was submitted, for the appellant, that, in the circumstances, the proposal would more accurately have been described as a hotel, or alternatively as a hotel and nightclub, or as a nightclub and a restaurant.

   [13]See para 22 of affidavit of Harvey.

1. The terms ‘hotel’ and ‘restaurant’ are defined in the City Plan as follows:

“Hotel:a use of premises for the sale of liquor for consumption on site, which may also include sale of liquor for consumption off site, short term accommodation and dining/entertainment activities.

Restaurant: a use of premises for providing meals or light refreshments on a regular basis to members of the public for consumption on or off the site, eg café, restaurant, theatre restaurant, bistro, milk bar, coffee shop, tearoom, takeaway, drive‑through food outlet or fast food outlet.”

1. Mr Skoien, for the appellant, pointed out that the definition of hotel is the only one of those which refers to all of the activities proposed.  He also drew attention to the definition of ‘use’ under IPA which extends only to other uses which are incidental to or necessarily associated with the primary use[14].

   [14]See Schedule 10 to the IPA.

1. It was submitted for the co‑respondent, that this is not a case of determining whether one or more uses would be incidental to or necessarily associated with another.  Rather, it was submitted that the proposal answers the description of a nightclub and that the other things done for the comfort of patrons who are listening or dancing to music, such as the provision of liquor and some limited food are not activities which are excluded from a nightclub and are not separate purposes, on a proper construction and application of the definitions in the City Plan. 

1. The determination of the characterisation issue involves a consideration of the proposal at hand in the context of definitions contained in the City Plan.  It has long been established that, in construing provisions of a planning scheme, it must be borne in mind that they are not the product of a parliamentary draftsperson.

1. I accept Mr Hinson SC’s submission that the subject definitions in the City Plan ought be read as referring to activities regarded as entities, rather than as piecemeal or incidental activities[15]  and that it is necessary to determine the character of the whole enterprise or undertaking in order to determine whether separate and independent purposes are being pursued or one single purpose with both dominant and subservient activities[16].  Mr Skoien, in his oral submissions, said that he had “not a lot of disagreement” with the proposition that one needed to focus on what he described as the ‘core activities’ to ascertain the appropriateness of the definition of the use[17].  That may be illustrated by reference to the definition of ‘restaurant’.

   [15]Chiefari v BCC [2005] QPELR 500 at 503.

   [16]Food Barn Pty Ltd v Solicitor General (1975) 32 LGRA 157, 160-161.

   [17]See T29.

1. The substantive part of the definition of ‘restaurant’ refers only to the provision of meals and light refreshments but, as appears from the examples listed in the definition, activities which might occur at a restaurant, as defined, are not limited to those which are necessarily associated with the provision of meals and light refreshments. A theatre restaurant involves theatrical performances, by way of entertainment, which are not referred to in the definition and are not necessarily associated with the provision of meals and light refreshments, but a theatre restaurant is nevertheless one of the stated examples of a restaurant.  Restaurants are also commonly licensed to serve alcohol to their patrons, even though the definition of ‘restaurant’ does not expressly refer to the sale and consumption of alcohol.  I accept Mr Hinson SC’s submission that the sale of liquor for consumption with a meal does not mean that premises at which meals and liquor are sold, are concurrently both a hotel and a restaurant. It is also not uncommon for a restaurant to provide a pianist or other form of music.  Such undertakings would continue to be properly described as restaurants, even though the definition does not expressly acknowledge that such activities might also take place. 

1. Similarly, as Mr Skoien accepted, it is not unusual for nightclubs to be licensed to serve alcohol to those attending to enjoy the entertainment[18].  That would not, in my view, necessarily alter the character of the premises from a nightclub to a hotel, or a hotel and a nightclub.  In recognition that a nightclub with a liquor license might be described as simply a nightclub, Mr Skoien submitted, as one of his alternative arguments, that the proposal might be described as a nightclub and restaurant[19].  That was on the basis that the provision of food to patrons would he contended not ordinarily be associated with a nightclub.  I do not accept that.  I do not consider that the proposal to also serve some food to its patrons necessarily disqualifies the proposal from being characterised as a nightclub or necessarily makes it more than a nightclub.

   [18]See T30, 31.

   [19]See T30.

1. Each of the definitions, to which attention was drawn, focuses upon a particular activity as that which is definitive of the purpose for which the premises are to be used.  In the case of a hotel, it is the sale of liquor for consumption on site, although other activities may also occur.  In the case of a restaurant, it is the provision of meals or light refreshments, while in the case of a nightclub it is listening and/or dancing to live or recorded music, predominately during the night hours. 

1. Whether a particular proposal is for a hotel which will, in addition to alcohol, provide meals and entertainment, a restaurant albeit one which is licensed to serve alcohol and also entertains its patrons with background music or (as in the case of a theatre restaurant) theatrical performances, or a nightclub albeit one which will also provide alcohol and some food to its patrons while they enjoy the music is a question of fact and degree.  In determining the description which is applicable, the Court must undertake its task of characterisation in a practical and common sense way to determine the appropriate genus which best describes the activities in question.  Where there are two or more defined purposes which are apt to cover a particular proposal, a “best fit” approach is appropriate.  What must be characterised is the proposal the subject of the application, rather than some further or other application which might be made at another time[20].

   [20]See Yu and Leung v Brisbane City Council [2006] QPELR 102 at [16] and the cases referred herein.

1. The proposal to provide a limited extent of food for patrons does not persuade me that that proposal is best described as a restaurant.  Whether the proposal is best described as a hotel or a nightclub is perhaps less clear.  Much will depend on how it is operated, since the premises would be physically suitable for use for either purpose.  If the appeal were dismissed and approval granted for a ‘nightclub’ then it would, of course, be required to operate that way, until or unless some other approval were granted.  That does not however, obviate the need to consider the proper characterisation of the proposal.

1. The report accompanying the application speaks of a ‘lounge bar’ atmosphere in which music will be played at lower levels than in a ‘traditional’ nightclub.  Those are among the matters to which Mr Skoien referred.  The proposal is, however, elsewhere described as being for entertainment purposes and in particular, is proposed to be a facility for people to enjoy a particular type of entertainment, namely music, including amplified music, predominately at night.  Having considered the whole of the material I am, on balance, satisfied that the description ‘nightclub’ is not inappropriate either in terms of the ordinary meaning of the word or its defined meaning for the purposes of the City Plan, at least on a “best fit” approach.

1. Had I concluded that the purpose was mis-described, then I would have exercised the discretion, in s 4.1.5A, to permit the appeal to proceed notwithstanding non-compliance. 

1. It is improbable that a misdescription of the purpose in the application form and public notice would have, in this case, mislead someone to such an extent as to have substantially restricted their opportunity to exercise the rights conferred by the Act.

1. The misdescription on the application form would not have had any substantially restricting effect.  Any person reading the application documents would have had before them the supporting information which described, in much greater detail, what is proposed.  It is that information upon which such a person would have made a decision as to whether to exercise their statutory rights.

1. As was pointed out by Mr Job, for the Council, the description did not alter the assessment category for the proposal.  Hotels, nightclubs and restaurants are all sub-sets of ‘centre activities’ for the purposes of the City Plan.

1. Mr Skoien expressed a concern for those who might have seen the public notice but chose not to inspect the application documents.  As was observed in Liquorland (Australia) Pty Ltd v Gold Coast City Council [2001] 2 QdR 476, the public notice supplies only basic information to interested persons. For members of the public or the adjoining land owners, the place at which the precise details of the proposed development are to be obtained is not the public notification. As Jones J said at page 486:

“It would not be expected that an objector to the proposal would form a submission based on the information contained in the public advertising, nor indeed in what is set out in the application form.  It is the accompanying maps, sketches, site plans and development details which one expects would be relevant to any intending objector.”

1. It is of course possible for a misdescription of purpose in the public notification, to mislead a person, who might otherwise have been interested in exercising the rights conferred by the Act, into believing that what is proposed is something of no interest. I do not consider however, that the use of the expression ‘nightclub’ would likely have had that effect in this case. It is probable that a person who might have been interested in making a submission to a proposal in which alcohol and some limited food are to be provided to patrons while they are entertained with music, including amplified music, predominately in the night hours, would have been at least put on inquiry by the description ‘nightclub’, so as to have inspected the application documents,[21] to find out what was proposed.

   [21]Which, I note, were also able to be viewed on-line in this case.

Was the application properly notified

1. This issue, in so far as it relates to the description of the use in the public notification, has already been dealt with.

1. The remaining issue concerns the closing date for submissions given in the notices to the adjoining owners.  The applicant was required to give a notice to the owners of all adjoining land (s 3.4.4).  The notice was required to be in the approved form (s 3.4.4(21), which was Form 7.  A copy of the Form 7 was given to the adjoining owners.  It correctly identified the closing date for submissions.  There would appear to be no non-compliance.

1. The source of the complaint is the covering letter sent with the notices.  The covering letter contained an erroneous reference to the last day as being 16 May 2006, rather than 16 June 2006.  That was obviously an error, since the letter itself was dated 24 May 2006.  It was unnecessary to give the letter.  As has been noted, the Form 7 was correct.  As it happens no adjoining owner claims to have been adversely affected.  Each says that they would not have made a submission against the application and that they have no objection to it.  I would have exercised the discretion under s 4.1.5A to permit the appeal to continue notwithstanding any non-compliance arising by reason of the misstatement in the covering letter.  Mr Skoien frankly conceded that this was not his strongest point[22].

   [22]See T8.

1. I conclude that the appeal ought proceed notwithstanding the preliminary points raised by the appellant.