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PLANNING AND ENVIRONMENT COURTOF QUEENSLAND
Donavon v Brisbane City Council  QPEC 9
RAYLENE GAYLE DONAVON
BRISBANE CITY COUNCIL
NICHOLAS ANDREW BUCKLE AND MARGARET HELEN JOSE-BUCKLE
Planning and Environment
Hearing of an application
Planning and Environment Court, Brisbane
20 March 2020
2, 3, 4 and 5 March 2020
R S Jones DCJ
PLANNING AND ENVIRONMENT – PERMISSIBLE CHANGE APPLICATION– where the applicant and second respondents are adjoining neighbours – where applicant seeks a development application for reconfiguration of a Lot – where applicant proposes to construct a two story garage – whether request requires consent by second respondents – whether the requested change does not materially affect the second respondents’ land – whether court has power to grant request – whether court has power to impose conditions.
Sustainable Planning Act 2009 (Qld) ss 7, 10, 236, 345, 369, 371, 374, 375, 440
Bon Accord v Brisbane City Council  QPELR 23
Cox v Maroochy Shire Council  QPEC 51
Lewiac Pty Ltd & Anor v Gold Coast City Council & Ors  QPELR 385
Peet Flagstone City Pty Ltd v Logan City Council & Ors  QCA 210
Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014
Walden v Logan City Council  QPELR 640
Western Australia Planning Commission v Temwood Holdings Pty Ltd 221 CLR 30
Mr A Skoien for the applicant
Mr P Van Eps for the first respondent
Mr M Batty for the second respondents
Pan and Partners for the applicant
City Legal for the first respondent
Connor O’Meara for the second respondents
- This proceeding is concerned with an application pursuant to s 369(1)(d) of the now superseded Sustainable Planning Act 2009 (SPA) for a permissible change to an existing development approval given by this Court on 20 October 2004. For the reasons set out below the orders of the court are:
- 1.The application is dismissed
- 2.I will hear further from the parties, if necessary, as to any consequential orders.
- On 20 October 2005, Judge Wilson SC (as he then was) made orders to facilitate the reconfiguration of one Lot into two. Of particular significance is that under the heading “Ecology” it was a condition of approval that specific Building Location Envelopes (BLE) were identified and that:
“No part of any building, associated outbuildings and other structures (including swimming pools, tennis courts, retaining walls, excavation, filling, car parking, on-site waste disposal areas or the like) other than a fence or an access way for motor vehicles directly from the access/street to the dwelling, is to be located on any part of the site outside of the approved Building Location Envelope (BLE)…”
- The result was that Lots 6 and 7 were created being very steep parcels of land sloping from Dewar Terrace, Corinda to the east down to the Brisbane River to the west. The BLEs were located in close proximity to the newly created access arrangements which serviced both Lots. Pursuant to condition 12 of the approval, it was a condition that the then registered proprietor was to enter into a covenant under the Land Title Act 1994 which was capable of immediate registration with the then Department of Natural Resources and Mines to “ensure the conservation of the plants and native animals on the covenant area over covenants on Lots 6 and 7 on SP148464”.
- The net effect of the defined BLEs and the covenants was that the houses now constructed on both Lots are surrounded on all sides, but most relevantly to the east, by areas subject to the covenant, save for that land required to provide access to the sites.
- The applicant is the registered proprietor of Lot 7 and the second respondents are the registered proprietors of Lot 6 to the south. As already mentioned, both Lots slope steeply from east to west and the houses on both Lots have been designed to be sympathetic with the surrounding bushland setting.
- On 24 March 2016, the applicant filed her originating application seeking the following relief:
“1. Approval pursuant to s 369(1)(d) of the Sustainable Planning Act 2009 for permissible change to the Development Approval that was given by the court on 20 October 2004 … and in particular:
- a)an extension of the BLE;
- b)a corresponding reduction of the area the subject of the existing registered Covenant for the preservation of Native Animals and Plants.”
- The grounds relied on are said to have been set out in the affidavit of a Russell Walters sworn on 17 March 2016. I was not taken to that document. However, during the course of this proceeding, evidence was called on behalf of the applicant from a Mr Natoli. In his report dated 2 March 2017, it was said that the purposes of the report was to articulate how the application for permissible change arose, to define the matters contained in that change and to outline the central planning issues. Thereafter, under the heading background it is said:
“The planning investigations revealed an opportunity for Mrs Donovan to explore the potential of removing theses [sic] site constraints to make better use and utility of her land and improve the enjoyment of her asset.”
- Under the heading “Application for Pre-request Change to Development Application”, it is said:
“The change sought to extend the BLE over the entire area of the site east of the dwelling and consistent with that action reduced the Covenant that applied over this area.
In order to provide for a range of potential options and design outcomes for using the site it was considered appropriate to fully remove the constraints over this area as part of this change request.” (emphasis added)
- The reason why that particular part of the report is emphasised is because of the somewhat fluid nature of what was actually intended for the upper level of the building to be constructed on the applicant’s land. It was uncontroversial that if the restrictions presently imposed by the covenant over that area of land to the east of the existing house on Lot 6 were removed, the applicant intends to construct a garage of just over 66 m2 (7.8 m2 x 8.5 m2). This would of course involve considerable earthworks including rearranging the existing access arrangements but those matters can be left for discussion below.
- It is also uncontroversial that a one storey structure would be sufficient to accommodate the applicant’s (and her husband’s) vehicles. Uncertainty arises because what is proposed is not a single storey garage but a double storey structure which would involve a second storey of similar dimensions to the ground level. In drawings prepared as early as 25 June 2015, the upper level is described as “Proposed Storage”. In more recent drawings dated 28 March 2017, the upper level is described as a “loft”. As a consequence of these different descriptions the following exchange took place between the court and Mr Skoien, counsel for the applicant:
Q So is it a loft or is it storage?
Mr Skoien It’s to be for storage, your Honour.
Q So it’s not intended to be for habitation?
Mr Skoien For storage only. …
- However, it became quite clear from the evidence of the applicant herself that that was not her intention at all. In her affidavit sworn 22 August 2019, the applicant deposed as follows:
“I propose the building will be two storeys.
The roof of the 2nd level will not be higher than the existing house roof.
A two car turntable will take up almost the entire 1st level.
The 2nd level will be used as a store room and utility room by my husband. He is an artist/hobbyist. He needs secure space for his projects. The storage under the home is not secure and subject to the elements. He will be able to store his models, art supplies, electronics etc. in the 2nd level rather than have them stacked up on the floor in a bedroom as he does presently.” (emphasis added).
- Not surprisingly, this matter was pursued by Mr Batty, counsel for the second respondents. Mr Batty asked the applicant if she might be able to provide some details of what her husband’s activities actually were. Her response was:
“Well, there is (sic) numerous activity. As I said, art. He does actually paint as well as sketch. In terms of hobbies, I suppose it’s a – capturing the other activities in terms of tinkering with some electronics – it’s arts – well, it’s not arts and crafts. It’s – how do you describe the things that people build and – a lot of it is electronic based. Computers, gadgets. Yeah.”
- After further attempts to try and get some specific information about her husband’s activities, the applicant was asked whether it would be a workshop area. She responded:
“Not necessarily. I think – as I said, storage is probably the main aspect because under the house currently he does have a workspace, but because of the clutter and the actual parking of cars at the moment, it means that it’s actually not able to be utilised – that area – appropriately, because that would be my preference in terms of if you’re actually going to be using tools and things it should be under the house – and the – so that the storeroom and the storage area can actually remain clean.” (emphasis added)
- When asked if it would be fair to say that what the actual intended use was yet to be decided the applicant responded:
“I would say yes. We have had some thought but until we actually move it’s hard to actually say. It’s like at any time you move into a new house in terms of the exact – in terms of where you’re locating things, but that’s the proposed thought at the moment.”
- I found the applicant’s evidence about what was proposed in respect of the upper level of the garage to be unconvincingly vague. That said, it would appear that it was at least contemplated that the husband’s “workspace”, which currently is unworkable because of the cars being parked in the garage area, was to be relocated above the proposed garage. It also became quite clear that the applicant would not have been content to have any condition imposed, assuming for the moment that such a condition could be lawfully imposed, that would restrict the use of the upper level of the proposed garage to only passive uses such as storage. In this context, the following exchange took place between Mr Batty, the Court and the applicant:
Mr Batty: I just ask you to make that assumption. What I am asking is effectively, if this condition can be imposed, would you as the applicant, the person making the request, accept a condition that no construction or assembly activities are allowed to take place in the area marked storage on the second level of what’s proposed?
A: I would – I would like to actually have more definition behind what’s termed construction.
The Court: Well, let’s put it this way. Would you agree to a condition that in – the effect of which was to restrict any use of the upper level to a passive use, namely storage?
A: I would have some concerns, yes.
The Court: Because there were some plans where it’s described as a loft? … So what do you see it as? A storage area or a loft involving multiple uses, of which storage is but one?
A: Well, storage is the main purpose but again, potential – I can’t – as I say, I suppose I can’t predict future in terms of other owners, if we have other owners in terms of how they would utilise it and that, I suppose, why I’m thinking in terms of for the future.
The Court: Don’t worry about that. The conditions would run with the land assuming a condition could be imposed. Just concentrate on what you and your husband propose to do?
A: Well, it’s a large area. Storage is definitely needed but I suppose in terms of if you’re actually putting wings on a model (sic) aeroplane is that deemed construction is my concern.
Mr Batty: … Doctor, I take it then, the answer to my question therefore is no, you can’t exclude that possibility and therefore you wouldn’t be willing to accept the condition?
A: Not as – not in – without clarity about what is construction and what – how that would actually limit – as I have said, putting wings on a model aeroplane or putting, you know, electronic plugs together could be interpreted as being construction when it’s actually no noise.
- The applicant’s attitude towards a condition limiting or restricting the use to which the upper level of the proposed garage could be put will be addressed further below. However, it is appropriate at this stage to identify the clear tension as between what Mr Skoien advised the Court was to occur on the upper level and the applicant’s own evidence as the issue arose again during final submissions.
- When this matter first came before the Court on 28 March 2017, Mr Williamson QC, (as the then was), expressed concerns about the applicant’s case as being a “moving feast”. As a consequence, after it became apparent that the matter would have to be decided by the Court, on 25 July 2019, the following orders were made:
“IT IS ORDERED THAT:
- 1.By 9 August 2019, the applicant is to notify the other parties of the proposed changes to the development approval that she seeks to rely upon at the hearing of the application.
- 2.By 23 August 2019, the applicant is to file and serve any further affidavit material that she intends to rely on …”
- As a consequence of that order, the applicant identified her “Proposed Changes to the Development Approval”:
“The Draft Approval Package issued by the Council on 11 April 2019 be approved subject to the following changes;
- 1.The Table of approved drawings and documents be amended to include;
- a.Easement Drawing 760PP3
- b.B Donovan Drawings M7606 C 1-6
- c.Dunn & Moran Plans SD 01 & SD 02 (note these plans assume plantings north of proposed easement K. If Easement D is not replaced by Easement K the area for planting will be reduced)
- d.Norris Clarke O’Brien 7605DW
- 2.After the words ‘Building Located Envelope (BLE)’ in condition 9 add the words ‘being all the land to the East of the ‘Proposed New Covenant’ located on the western side of the Lot 7 dwelling shown on Plan M7606 C 6
- 3.Condition 18 to be amended as follows;
In lieu of existing Covenant E the Applicant enter into a new Covenant with the Brisbane City Council pursuant to Section 97A of the land Title Act 1994 in terms satisfactory to The manager, Brisbane City Legal Practice to ensure the conservation of the plants and native animals over all the land to the West of the exiting dwelling shown as ‘Proposed New Covenant’ on the Plan M7606 C 6.
- 4.Condition 22 ii and 22 iii be deleted and replaced with the following;
- a.Existing Easements A, C & D for the purpose of access, construction and maintenance of utility services over Lot 7 in favour of Lot 6
- b.If Lot 6 requests the surrender existing Easement D and agrees to grant proposed Easement J on approved drawing 760PP3 then grant Lot 6 Easement K on the same drawing with both Easements J & K each being for the purpose of access, construction and maintenance of utility services, but not stopping or parking
- c.If requested by Lot 6 grant Easement L on approved drawing 760PP3 for the purpose of temporary manoeuvring of vehicles to facilitate passing and not for the purpose of parking standing loading or unloading of vehicles
- d.Any request by the Owners of Lot 6 for the purposes of 4 b and 4c above must be made in the case of Easement K within 60 days of receiving notice of this approval, and in the case of Easement L within 60 days of completion of the construction of the driveway
B. Additional possible change for the benefit of the 2nd Respondents
- 5.The Applicant will consent to any application by the Owners of Lot 6 to further amend the existing approval to provide;
a. A replacement of the existing Covenant H with a Covenant extending from the rear of their existing dwelling West to the river
b. The extension of their BLE to encompass all the land to the East of any replacement Covenant
The Applicant is prepared to offer the Court the following undertakings;
- 6.That any new building on Lot 7 will have no window door or other openings on its Southern façade, that is the façade facing the residence on Lot 6
- 7.That a vertical wall or vertical garden will be constructed at the southern end of the void between the existing home and the proposed new structure to resist the visibility of the Lot 6 house from the void
- 8.That the height of any new structure will not exceed the height of the existing structure on Lot 7
- The reference to the draft approval package issued by the Council on 11 April 2019, is a reference to a number of draft conditions associated with a proposed development described as “Reconfigure a Lot Development Permit – Subdivision of Land.” That draft package of conditions came about as a consequence of negotiations between the parties to try and resolve the dispute without recourse to the Court. Unfortunately this did not occur.
- During final submissions, Mr Skoien said that what was being sought was no more than an extension of the BLE and a corresponding reduction in the covenant area to the east of the existing house on the land. According to him, that had not changed throughout the entire proceeding and was all that was sought, and those matters identified in exhibit 6 could be dealt with by the way of conditions. In this context, surprisingly given the applicant’s attitude to a condition limiting the use of the upper level to storage only, during final submissions Mr Skoien said, consistent with his written submissions, that there could be a condition imposed which would limit the use of the ground level for only garage purposes and that the “upstairs should only be used for storage.”
- Somewhat surprised by this apparent change of attitude, Mr Skoien was asked whether he had specific instructions to that effect. His answer was that he did. Unfortunately though, by this stage it was impossible for Mr Batty to explore with the applicant this apparent change of heart.
The applicant’s position at the end of the evidence
- Under the heading “Summary of the applicant’s position” it is said:
“In short, the Applicant submits that the Court would conclude that:
- (a)The Proposed Change does not constitute substantially different development to that approved under the ROL approval;
- (b)The Proposed Change also others (sic) satisfies the requirement for permissible change in s 367(1) of the SPA;
- (c)The Proposed Change does not involve development that would require owners consent under s 263(1) of the SPA and/or would not require any consent of the owner of Lot 6 from the development on Lot 7 – hence pursuant to s 371(c) does not require consent of the Second Respondents for the Request;
- (d)It is not reasonable for the Second Respondents to have withheld, and to withhold their consent to the Request, and the Proposed Change does not materially affect Lot 6 – hence pursuant to s 371(c) does not require the consent of the Second Respondents…
- (e)To the extent that there has been non-compliance with regard to provisions of the SPA concerning the making of the request, the Court can, and should, exercise its discretion to excuse that non-compliance; and
- (f)The Request ought be approved, subject to conditions, to facilitate the Proposed Change.” (Footnotes deleted).
- Thereafter a number of potential conditions of approval are identified which include:
- (i)The identification of the new or extended BLE including the maximum height of any structure to be erected on the extended BLE.
- (ii)That any building and operational works associated with the construction of the proposed garage, driveway etc be carried out and maintained generally in accordance with approved plans.
- (iii)A condition prohibiting any windows, doors or other openings on the southern side of the proposed building.
- (iv)Conditions requiring specific landscaping to be carried out to preclude interruption of privacy to the adjoining Lot 6.
- (v)A condition requiring any new landscaping to be not only carried out but to be maintained at all times.
- (vi)That all operation and building works be carried out pursuant to a construction management plan.
- (vii)A prohibition on the use of any structure created on the extended BLE for any use other than for a garage at ground level and for storage on the upper level.
- (viii)A condition requiring the applicant to grant specific easements in favour of the second respondents to provide for the movement (but not parking of vehicles for access purposes).
- However, under the heading “Conclusion” it was submitted:
“In conclusion, the Applicant submits that the Court ought to indicate that it is inclined to grant the Request (to authorise the Proposed Change), subject to appropriate conditions.
In this regard, it is noted that reference is made to the Proposed Change in general terms. In short, the applicant submits that the Court ought to indicate that it would be willing to approve the Request (even in the form of the Amended Proposed Change or in the form of the Original Proposed Change. The difference between the two effectively relates to the adoption of the conditions already identified by the Council in respect of the Amended Proposed Change) referencing a plan for the Revised Covenant Area that includes areas down the northern and southern boundaries of Lot 7 … which the Council has indicated it does not require …” (emphasis added, footnotes deleted).
- That submission together with the proposition in footnote 40 of the applicant’s written submissions is concerning. First, they appear to stand in contradiction to Mr Skoien’s opening remarks to the effect that the only relief sought was that stated on the fact of the originating application. That would become but a fall back or alternative outcome. Second, the reference in paragraph 5.2 to the “adoption of the conditions already identified by the Council in respect of the Amended Proposed Change” is also misconceived in my view. The conditions referred to, could in no sensible way be interpreted as conditions attaching to the proposed changes to the reconfiguration of a Lot. Those conditions were clearly part of a draft package concerned with not just reconfiguring Lot 7 so as to extend the BLE and the consequential reduction of the covenant area, but also the intended operational and building works.
- Before going on to deal with the issues in dispute, it is appropriate that I point out just how unfortunate these proceedings are. Regardless of the outcome there can be no doubt that the once relatively cordial relationship between the applicant and her husband and the second respondents will be, in all likelihood, permanently scarred. Second, it would appear that this matter was very close to a negotiated settlement. It commenced before me on 28 March 2017. Following an opening, site inspection and some evidence, the matter was then adjourned on the basis that a settlement could be reached subject to agreement about certain conditions. That situation continued until it was indicated that all negotiations had failed and that the matter was required to be determined by the court. Apart from fracturing the relationship between these two neighbours this matter has also involved all the parties in incurring substantial stress and costs.
The issues in dispute
- The issues in dispute were reduced to writing and were identified as follows:
“The issues in dispute in relation to this application for a request for a permissible change under Sustainable Planning Act (the ‘Request’) are:
- whether the Request requires the consent of the Second Respondents;
- whether the Request required the consent of the Second Respondents as at the time that the Request was made;
- whether, to the extent consent is required for the Request, the Second Respondents have unreasonably withheld their consent;
- whether, to the extent consent is required, the requested change does not materially affect the Second Respondents’ land;
- whether the Court has the power to grant the Request because of the way in which the Request has been made;
- whether, to the extent that there is non-compliance with the provisions of the Sustainable Planning Act in respect of the making of the Request, the Court can, and ought, to excuse that non-compliance under section 440 of the Sustainable Planning Act
- whether the Request ought to be approved;
- whether the Court has the power to impose conditions as sought by the Applicant;
- in the event of any approval of the Request, what conditions ought to attach to any approval of the Request.”
- The position of the first respondent (the Council) is conveniently articulated in correspondence between it and the solicitors acting on behalf of the second respondents. In its correspondence dated 2 March 2020, the Council indicated that, in respect of the merits of the application it did not oppose the changes sought by the applicant. However, for the reasons set out in that correspondence, it identified a number of difficulties associated with the proposed undertakings. This prompted a response from the second respondents’ solicitors on 3 March 2020 wherein it was said:
“Thank you for your letter of 2 March 2019.
We note that the Council does not support the undertakings which form part of the applicant’s ... material.
We expect that the Applicant will also submit that those matters set out as suggested undertakings could be conditions of approval.
Could you please confirm whether the Council says that these matters are lawful or appropriate conditions.”
- On 3 March 2020 the Council responded:
“If your expectations are correct and the Applicant seeks the undertakings proposed in paragraphs 6 to 8 ... to be imposed as conditions, my instructions are as follows:
- (a)the proposed structures and vertical wall do not form part of the reconfiguration of a lot (ROL) approval or the proposed changes to the development ROL approval;
- (b)the matters in paragraphs 6 to 8 … would more appropriately be conditions of a future development permit for a material change of use or building work, if that was so required;
- (c)the reasonableness and relevance of those matters, as they relate to the ROL approval, in Council’s view, would be difficult to enforce as lawful conditions, given they are unrelated to the ROL aspects of the development.
Whilst it is ultimately a matter for the court, in Council’s view, there are limited circumstances (as outlined in my correspondence of yesterday) for which conditions could be imposed for building works as part of a ROL approval, therefore it is Council’s position that the undertakings set out in paragraphs 6 to 8 … are not matters which could be enforced as lawful conditions (Emphasis added).
- Turning then to the questions posed, but not in the order set out above, it is uncontroversial that this proceeding ought to be dealt with under the now superseded Sustainable Planning Act 2009 (SPA).
- As best as I can tell, the fifth question is dependent upon the answers to the preceding four questions. If I am wrong that it does not really matter, because, if the applicant fails in respect of the substantive issues, there could be no basis for approving the application otherwise.
- Turning then to issues concerned with consent of the second respondents, questions 1 to 4, the reference to “the request” is a reference to a request to change an existing development approval pursuant to s 369 of the SPA which relevantly provides:
“(1) If a person wants to make a permissible change to a development approval, the person must by written notice ask the following entity (the responsible entity) stated for the change or approval to make the change.”
- In circumstances where the approval was given by the Court, the relevant responsible entity in respect of the permissible change request is again this Court.
- A permissible change under the SPA is one that would not result in a substantially different development. Pursuant to s 371:
“If the person making the request is not the owner of the land to which the development approval attaches, the request must be accompanied by the owner’s consent unless –
- (c)The consent of the owner would not be required under s 263(1) if a development application were made for the requested change; or
- (d)The responsible entity is satisfied that –
- (i)having regard to the nature of the proposed change, the owner has unreasonably withheld consent; and
- (ii)the requested change does not materially affect the owner’s land; …” (emphasis added).
- Section 263(1) provides that the consent of the owner of land the subject of an application is required if the application is for, relevantly here, reconfiguring a Lot. According to the applicant, the Court should look to the “reality” of the requested change. That reality being that it is but a change to facilitate works to be carried out in areas of Lot 7 where such works are presently precluded by virtue of the existing covenant. It is then submitted:
“Here, the relevant question under s 371(c) of the SPA is whether a hypothetical development application made over the land to allow ‘works’ on Lot 7 that are prohibited or regulated by conditions 8 and 12 of the ROL Approval (ie operational works, building work and/or plumbing or drainage work) would require the consent of the Second Respondents, pursuant to s 263(1) It would not.”
- It is then contended that as consent would not required under s 263(1), it is not required as a consequence of the exception provided under s 371(c).
- When submissions were expanded on in final oral addresses, Mr Skoien articulated the position of the applicant in the following terms:
“And your Honour will see that the change that that was proposed here – sorry, this condition required there to be a restriction of site works to within the Building Envelope, including, in (a), the restriction of building works. Now, your Honour, it’s rather curious that the second respondents here submit to the Court that it is no part of a reconfiguration of a Lot approval to somehow regulate building works, when that’s exactly what condition 8 is seeking to do. There is no authority cited for the propositions my learned friend broadly suggested in his written submissions and again in his oral submissions that in a reconfiguration of Lot approval or any other approval there can’t be provisions dealing with other types of development. And that’s precisely what this condition seeks to do. It regulates the building work that’s to be created on the new Lot.
… It’s saying it’s regulating the building work within this allotment to the area only within the Building Envelope area.
It is regulating the building work that can occur on this Lot. No part of that is related.
My submission, your Honour is that, it is a regulation of building work, for instance a regulation of the building work would be if there was a provision that said you can only go to a certain height, if you can only go to a certain width; if you can only have certain setbacks to boundaries. Their or regulations dealing with building work that can occur. It doesn’t say, for instance – it doesn’t regulate it to an extent of telling you what is a type or a form of development that must be achieve, or the like, but that purpose is a limit on building work on the newly created Lot. That is all it can be doing. And it does so by telling you – by limiting you to certain locations where you can do it.” (emphasis added).
- In my respectful opinion those submissions are misconceived. Condition 12 attaching to the original approved ROL required the then applicant to enter into a covenant capable of immediate registration in terms satisfactory to the manager of the Brisbane City Council’s legal practice. The areas the subject of the ecology covenants are then identified in the relevant plans attached to the approval. Those plans, in effect, covered the whole of the developable part of Lots 6 and 7, save for those areas specifically set aside as BLEs. Pursuant to condition 8, under the heading “Ecology”, it is provided that no part of any building, associated out buildings and other structures (including swimming pools, tennis courts, retaining walls, excavation, filling, car parking, on-site waste disposal areas or the like) other than a fence or an access way for motor vehicles … is to be located on any part of the site outside of the approved BLE.
- While it is true that the end result of conditions 8 and 12 is a regulation or specific direction as to where, and only where, building works can occur, those conditions, are not concerned with regulating building works that might occur on either Lot 6 or 7 within the BLE areas. They are not, contrary to Mr Skoien’s contention, “regulating the building work that can occur on this Lot”. Put shortly, the exemption to the need for owners consent under s 371(c) of the SPA has no role to play in the context of this proceeding.
Consent was required
- On the evidence before me, the relief initially sought pursuant to the originating application is, of itself, incapable of facilitating what the applicant really intended to achieve as described initially in the affidavit of Mr Gault which accompanied the application, or the subsequent more particularised proposed changes.
- The proposed changes contemplate an easement (easement J) over Lot 6 owned by the second respondents. When taken to this matter, Mr Skoien asserted that that was not a part of his client’s application but merely one of a number of suggested conditions. That response cannot be accepted. The applicant’s proposed changes were particularised pursuant to orders of this Court made on 15 June 2019. The relevant order provided that by 8 August 2019, “The applicant is to notify the other parties of the proposed changes to the development approval that she seeks to rely upon at the hearing of the application.” Indeed, during his opening, Mr Skoien drew my attention not only to that order, but also that, pursuant to that order, The applicant was required to identify what changes are sought to the development proposal in the proceeding. Exhibit 8 provided pursuant to the orders of the Court stand in stark contrast to the way in which Mr Skoien sought to characterise the applicant’s request.
- The answer to the first question, is that the request required the consent of the second respondents. In respect of the second question, pursuant to s 371 of the SPA, the request must have been accompanied by the owners’ consent subject only to the exemptions which have already been dealt with.
- The question of whether this Court could impose a condition of the type contemplated to create easement J affecting the respondent’s land is discussed below.
Was consent unreasonably withheld?
- According to the applicant, the second respondents have unreasonably withheld and continue to unreasonably withhold their consent to the proposed changes because they will not materially affect their land. Significant emphasis was placed on an agreement in principle proposal (the AIP) as being “powerful” and “compelling” evidence to justify the conclusion that the proposed changes would not materially affect Lot 6 and, that the refusal to consent to the proposed changes was therefore unreasonable. That evidence was also pointed to as being “compelling” evidence to justify the application of the discretion pursuant to s 440 of the SPA. I do not accept submission in respect of either the application of s 440 of the SPA or in respect of the issue of reasonableness.
- According to Mr Skoien, the AIP “fell away” apparently because of the Council’s negative attitude to the removal of spoil from the site via the Brisbane River. The evidence of the applicant was that the resultant conditions package issued by the Council did not include at least two “significant” matters and that was the reason why the AIP was rejected by the second respondents. According to the applicant:
“Of significance the matters that the Council did not include in the draft package are:
- (a)No conditions attached to the front yard of Lot 7, including no restrictions of the height of the building or openings for the two storey garage and no restrictions to the plantings and maintenance of those plantings;
- (b)No requirement that spoil be removed via the river;
- (c)The Council subsequently advised the party;
- (i)They did not want to be responsible for the approving (and subsequently enforcing) of the proposed landscaping on the front of Lot 7;
- (ii)They did not want spoil removed via the river.”
- The applicant went on to say:
“Subsequent to the rejection of the draft package by the second respondents, negotiations took place, which included mediation. On 4 July 2019 the second respondents announced their intention to break off without prejudice negotiations.
Following the refusal of the second respondents to continue negotiations, I consented to an order that I advise the other parties of my proposed changes to the Development Approval (order 25 July 2019).”
- It may well be the case that the second respondents announced their intention to break off the without prejudice negotiations. However, the unchallenged evidence of Mr Buckle is that on 17 August 2018, the applicant, through her solicitors, advised the solicitors then acting for the second respondents that she did not consider the AIP to be enforceable.
- As to exactly why and who caused negotiations to come to an end was not fully explored and I am left largely none the wiser. That said, the evidence establishes a number of significant matters. First, no final agreement was achieved. Second, the removal of spoil via the river, the landscaping and the removal of any openings in the proposed upper level of the structure facing the second respondents’ property were matters of significance to them. Third, they were not the only issues or differences between the AIP and what is now proposed. Further, as has already been identified, there are clearly conflicting messages about the intended use for the upper level of the proposed structure. Finally, the proposed works will result in not insignificant disruption insofar as access and use of the driveway is concerned for both the applicant and second respondents.
- While it may be possible to address the second respondents’ concerns about landscaping and privacy, the removal of spoil via the Brisbane River is clearly unachievable and remained a matter of genuine concern to the second respondents. As to the use of the upper level of the proposed development, the evidence of the applicant, notwithstanding Mr Skoien’s oral submissions, was clearly to the effect that uses other than storage were contemplated and that she would have been reluctant to agree to a condition which limited the use of the upper level to storage only. That the upper level might be used for other than storage or other passive purposes legitimately remains a matter of genuine concern to both of the second respondents, in my view.
- Also, while the construction of the proposed development might well be able to be managed under a project management plan, no such plan yet exists. In any event, even with the best of intentions, and best prepared plans, there can be no doubt that some disruption would result. The applicant relied on the evidence of Mr Meija, a civil and mechanical engineer, who gave evidence about the nature and extent of the likely construction works. Mr Meija accepted that there was an error in his initial calculations and that there could be in the order of 1,300 traffic movements involved in removing spoil from the subject land. He also accepted that the entire construction period could extend up to three months. Disruption to her ability to access to and from Lot 6 without restriction was a matter of particular concern to Ms Jose-Buckle.
- When being asked about the potential inconvenience that might be caused in respect of access she said:
“When I first raised it in my affidavit, the idea of access, it was in response to Mrs Donovan suggesting there would only be two traffic movements a day, so I requested clarification about that, because I’m not an engineer, but I can see the area that’s being built on, and I was concerned about how I’d get in and out. Nick and the Donovan’s live regular hours, pretty much. We know when Mr Donovan leaves of a morning and so on. There’s routine. I don’t. Ok I – even since the agreement in principle, my life has changed significantly. I have my own business. I work from home. Those hours depend on whether the school wants me during school hours or after school. I’ve undertaken to do my doctorate, so I’m now required to be a university, and I even lectured there last semester. So things change for me on a daily basis.”
- During further cross-examination Ms Jose-Buckle seemed prepared to accept that arrangements might be able to made to accommodate her access requirements “within a reasonable timeframe” but she still retained concerns about how that would be facilitated and, in particular, who she would be required to deal with.
- Another matter of particular concern to Ms Jose-Buckle was the loss of what she described as green space and negative ecological impacts. In her first affidavit she deposed:
“Our home is open plan in nature and it is set within a bushland setting. Many of the views enjoyed from the house are of external green space areas. The location of the house in a bushland setting was an important factor influencing my decision to purchase the property.”
- During her cross-examination, Ms Jose-Buckle readily conceded that her concerns in respect of the so called green space where stronger than those expressed by her husband. When asked what her concerns actually were she responded:
“I’m concerned first and foremost with the green space and the native wildlife that exists and visit that area, the length of time that it will take for plants to grow and how that will be kept alive. I suppose … Yeah maintained. What it will look like. So, yes, the – wildlife will go with the building; that’s always been a concern of mine. The aspects of privacy; yes, if there can’t be assurances. And that has always been our concern is that a second level removes elements of privacy. It takes away the design of the home and the way that the original architect envisaged it being. The encroachment of another significant building as you come down the driveway. …”
- It might well be the case that within a few years landscaping between the proposed development and the property of the second respondents’ would likely address a number of the privacy issues raised by both of the second respondents. However, there is little room for doubt that a number of Ms Jose-Buckle’s concerns remain valid. Even with landscaping in place, the proposed two storey structure together with the proposed roadworks will see most of the green space to the east of the existing dwelling on Lot 7 removed, and replaced with built form of which at least part would be visible when driving from Dewar Terrace towards to the existing residences.
- In respect of the potential ecological ramifications that might result from the removal of that green space, the applicant relied on the evidence of a Mr Moffatt and the second respondents on the evidence of a Dr Watson, both of whom are highly qualified and experienced ecologists. In Dr Watson’s report, he concluded that notwithstanding the need for maintenance and, in particular, weed control in the area to the east of the existing house on Lot 7, the proposed development would:
- (i)not generate a positive ecological outcome;
- (ii)result in the loss of green space, including that associated with the State and Council – recognised ecological values;
- (iii)result in the loss of resources, including movement opportunities, for native fauna; and
- (iv)result in the loss of habitat for native flora.
- According to Mr Moffatt, Dr Watson’s opinions were unjustifiable and pessimistic. It was his opinion that the land to the east of the existing dwelling did not warrant the imposition of a covenant for ecological reasons in the first place. His opinion in that regard is supported somewhat by the Brisbane City Plan extract. However, during cross-examination, he accepted that in respect of the ecological value of the covenanted area that would be lost, it was a matter about which reasonable minds might differ. He also accepted that, in strictly empirical terms, there would in fact be an actual loss of green space. During cross-examination by Mr Williamson QC, the following exchange took place:
“Q …. What I’m trying to establish with you, is this; that Dr Watson says, effectively what you have is (1) an open green space; (2) your replacing that – if the BLE is extended and the garage is built – you are going to replace that open space with built form, correct? That’s accurate, is what I’ve – there’s no doubt about that?
A …. You’re correct. You’re going to replace a green space area, but I think it’s relevant to take the consideration further that the green space area is not – it is not an area of high ecological significance. It’s an area that’s largely dominated by weeds, and I think that’s a material consideration in this case.”
- That the area is in poor condition may be accepted, but the end result is, as Mr Moffatt accepted, that there will be a not insignificant loss of green space to be replaced by built form.
- Finally, insofar as the visual amenity of the second respondents is concerned, as Mr Moffatt accepted, it could take up to five years for the proposed landscaping to reach the desired level of maturity.
- In her evidence the applicant expressed an opinion that her two storey garage might add to the value of the second respondent’s property. They however, had concerns that the contrary would be the case and both expressed those concerns in their evidence. In fact, being made aware of the applicant’s views, Mr Buckle made enquiries of a real estate agent who confirmed his concerns about the potential negative impact on value.
- While no expert evidence was called by either side to address this issue, at no stage was it seriously suggested during cross-examination that the second respondents either did not genuinely hold those concerns or, if they did, they were unreasonable or unwarranted.
- The question then is, having regard to the concerns expressed by the second respondents, was and does it remain reasonable that they withhold consent? In deciding this question, it was submitted on behalf of the second respondents that it had to be looked at from the point of view of the owners of the land to be affected by the proposed development. That is, it is a subjective and not an objective test. Second, having regard to a number of cited authorities, the question that needs to be asked is whether the decision maker, acting reasonably, could have made that decision. On behalf of the applicant, no particular authority was cited, nor test postulated in either her written submissions or oral submissions.
- In my view, it is unnecessary to consider what the appropriate test is, let alone make a determination on the matter. The evidence clearly establishes in my view, that, each of those concerns referred to above were well founded and genuinely held by the second respondents and, even if no one of those concern, of itself might justify the withholding of consent, when taken together, they clearly establish reasonable grounds doing so.
- It may well have been the case that the benefits that might have flowed had the AIP reached a satisfactory conclusion might have been able to significantly allay and/or off-set the second respondents concerns but that is not the reality of the situation they now find themselves in.
- It follows then that the answer to question 3 is in the negative. That is, the second respondents’ withholding of consent was not unreasonable and that remains the case.
- By way of conclusion on this topic, I should emphasise that I have proceeded on the basis that a number of conditions could be imposed that would require the applicant to do or not to do certain things to address the concerns of the second respondents. As will be seen below, I have reached the conclusion that many of the conditions the applicant now contends for could not be imposed.
The power to impose conditions
- Section 345 of the SPA provides:
“Conditions must be relevant or reasonable
- (1)a condition must –
- (a)be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or
- (b)be reasonably required in isolation to the development or use of premises as a consequence of the development;
- (2)sub-section (1) applies despite the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, an assessment manager or concurrency agency.” (emphasis added)
- Pursuant to s 375, when deciding a permissible change request:
“(1) after assessing the request under s 374, the responsible entity must decide to –
(a) approve the request, with or without conditions; or
(b) refuse the request;
- (2)a condition imposed under ss (1)(a) must –
- (a)be relevant to the proposed change; and
- (b)comply with s 345.
- Before being able to determine whether a contemplated condition is relevant or reasonable, it is necessary to identify the nature or character of the development involved. Having regard to the outcome sought by the request for is permissible change, the only rational conclusion is that for the purposes of the SPA, the “development” is “reconfiguring a lot”. This appears to have been uncontroversial as far as the parties were concerned.
- The necessary implication within the submissions made by Mr Skoien on this topic is that the Council, in response to any application for the reconfiguration of a Lot, could impose conditions that would materially impact on, not only where development could occur within the Lot but also restrict the extent, form and nature of development to occur on the reconfigured Lot prior to any application for building or operational works. Such conditions could limit not only the height, bulk and scale of any proposed development, but also include conditions impacting on design details down to the, location of doors, windows and other openings and landscaping. In the applicant’s written submissions it is asserted:
“The conditioning power extends to conditions limiting the use to be made of any newly created lot under a reconfiguration of a lot, or any part of such a lot.
Condition 8 of the ROL Approval (requiring the building envelope here) is a perfect example of a condition of a reconfiguration approval that limits building work. There is nothing unusual about such a condition and conditions prohibiting other development have been imposed on approvals and have been described as a ‘community price a developer must pay for a development approval and a vehicle for minimising adverse impacts of permitted development.’
While it is undoubtedly true that other types of approvals (such as an approval for a material change of use) may have greater scope for specificity in imposing such conditions (as Mr Buckley suggested), they [sic] can obviously be circumstances where a condition can be imposed (even as a relevantly blunt instrument) to ensure that potential adverse impacts that can be identified as likely outcomes of development in accordance with the subject approval can be appropriately addressed. (footnotes deleted)
- The italicised part of the written submissions is a reference to observations made by Gotterson JA in Peet Flagstone City Pty Ltd v Logan City Council & Ors. That case is of no assistance to the applicant. The observations of Gotterson JA are undoubtedly correct, but they have to be read in the context of that case being concerned with the applicants/appellants having obtained development approval to carry out operational works subject to a number of conditions. It is, with respect, of little if any relevance in considering what type of conditions might permissibly be imposed upon a request to, in effect, reconfigure a Lot.
- The elements of what constitutes or may constitute the reconfiguration of a lot bear no resemblance to those elements or activities falling under the heading of either “building works” or “operational works”.
- As was the case in Peet Flagstone City Pty Ltd v Logan City Council & Ors and many other cases, conditions requiring certain works to be carried out and imposing limitations on height, bulk and scale of proposed structures and the nature of activities that can occur within those structures, may be lawfully imposed in respect of applications for building works, material changes of use and even operational works. That is not the situation in this case.
- During oral submissions, Mr Skoien advanced this aspect of the applicant’s case as follows:
“Here what was sought was an extension of the building envelope with the consequent production [sic] of the covenant area and what been the subject of all of the shifting, if that’s what the terminology were going to address, is consistent with all of the cases in this court, the attempt to identify the condition that ought properly attach to that relief, to that change. If it’s to be – if it’s to be approved. And to make that good that proposition can I ask your Honour to turn to the page to the last of those pages, which was the pre-request response, behind tab 2.
And your Honour will see from this that the Council was – generally identified that it was a change to condition 8 to deal with the BLE, a partial release of the covenant which was condition 12, to reflect the reduced covenant. Those – items 2 and 3 and the same item. And then can your Honour look at effectively what were the conditions that the Council were saying that ought be adopted. No doubt the third item will take my learned friend by complete surprise. But the Council was saying that any building within the BLE could only be used for certain purposes.
So certainly, your Honour, the Council doesn’t have much difficulty in thinking that it’s able to limit the sorts of use that can be made of a building envelope. And then finally, in item 4, your Honour, the Council notes that there a conditions package that will need to follow. Now, if I’m following my learned friend’s argument through correctly, I understand it’s this – we make an application for two things, enlargement of BLE and restriction of the covenant area. And because various parties, the Council, the applicant, have been negotiating, discussing, suggesting conditions that ought to attach to any approval of that, that’s somehow there’s been a change to the request. There’s been no change your Honour it’s as simple as that.” (emphasis added)
- Notwithstanding the reference to “all of the cases in this court”, I was not taken to any authority which supported the applicant’s case. Instead, Mr Skoien seemed to rely on what he contended were prior actions on the part of the Council which, according to him, were consistent with the imposition of conditions of the type now being contended for on behalf of the applicant. None of the documents to which I was referred provide any such support.
- The first document to which I was referred was a letter dated 21 January 2016 written by one of the Council’s urban planners to, apparently, agents then acting on behalf of the applicant. Leaving aside any question of the author of that correspondence being able to bind the Council in any way whatsoever, that correspondence on its face was clearly concerned with not only the applicant’s intentions concerning the increased BLE area and reduction in the covenanted area but also with proposed building works to be carried out.
- Pursuant to s 345 of SPA, a condition must be relevant to (but not amount to an unreasonable imposition) on the development or use of premises as a consequence of development or, be reasonably required in relation to the development or use of the premises. Here, Mr Skoien clearly identified that the only form of “development” intended for the purposes of s 7 of the SPA was the reconfiguring of a lot to be achieved by an expansion of the BLE and, as a direct consequence of that, a corresponding reduction in the covenanted area to the east of the existing dwelling. According to Mr Skoien “that is all that is sought”.
- The change request having been made then requires the Council to assess that request and then make a decision about that request. Pursuant to s 375 of the SPA, the Council must decide to either approve the request (with or without conditions) or refuse the request. Of particular significance is that any condition imposed must be relevant to the proposed change and comply with s 345.
- The conditions now contemplated by the applicant are those set out in the particulars of the proposed changes and expanded upon in the applicant’s written submissions. In my view, conditions of the type contemplated under the heading “Undertakings” in that document and, a condition limiting the use of the upper level of the proposed structure to storage or some other form of passive use, could not be said to be relevant to and not an unreasonable imposition on the form of development proposed, nor could it be said that such conditions were reasonably required in relation to the type of development proposed. In other words, conditions such as that could not be said to be imposed for legitimate planning purposes.
- That the applicant might be prepared to consent to otherwise unlawful conditions is no answer. As was observed by Newton DCJ in Lewiac Pty Ltd & Anor v Gold Coast City Council & Ors:
“An unlawful condition cannot be made lawful by the willingness of a developer to be bound and, at a more practical level, any subsequent owner of the land could apply to have those conditions set aside.”
- In respect of the operation of s 440 of the SPA (question 6), while excusal provisions are not to be read down and must be given the full force and effect of their intended purposes, non-compliance with otherwise obligatory steps should only be excused in appropriate circumstances. In this case the consent of the second respondents was required in circumstances where the requested change, as particularised, would, on the reasons given, have a material effect on their land. In such circumstances it would not be appropriate to excuse the failure to comply with s 371 of the SPA.
- For the reasons given I have reached the following conclusions:
- The consent of the second respondents was required pursuant to s 371 of SPA.
- Accordingly, the exception provided pursuant to s 371(c) has no application in the circumstances of the case.
- The withholding of consent was a reasonable decision on the part of the second respondents.
- The excusal powers of this court provided pursuant to s 440 SPA should not be exercised in the circumstances of this case.
- With the possible exceptions of a condition addressing landscaping, many if not all the substantive conditions advanced on behalf of the applicant would not be relevant or reasonably required.
- As I understand it, Mr Skoien advanced a primary and an alternative form of relief. First that the application be allowed in a form contemplated by exhibit 6. Or, in the event that I were to conclude that relief is that form ought not to be granted, then limited to the relief identified on the face of the originating application.
- For the reasons given, I have concluded that relief in the form contemplated by exhibit 6 ought not to be granted.
- As to the alternative outcome contended for, I also consider that it ought to also be refused. The orders made by this court on 25 July 2019 were clearly designed to ensure that the applicant made clear to the council and the second respondents the true nature of the case they had to meet. The relief sought on the face of the originating application does not tell the full story. Exhibit 6 as expanded upon in the applicant’s written submissions does. Having done what was required, the applicant ought not to be permitted to rely on her alternative case to succeed. That is particularly so when the alternative form of relief sought and the potential consequences that then might follow were neither signalled to nor raised in any meaningful way with any of the witnesses.
- I do not consider it necessary to consider further any of the other issues raised. It is my view, that for the reason given, the application ought be dismissed.
- The application is dismissed.
- I will hear further from the parties, if necessary, as to any consequential orders.
 Exhibit 3.
 Exhibit 6, Tab 13, para 7.
 At paras 2 and 3.
 Exhibit 6, Tab 4, drawing M7606-04C.
 See drawing 1702800 SD-02.
 Transcript (T) 1-11, l 22-27.
 Exhibit 6, Tab 7 at paras 25-28.
 T 3-8 l 5-9.
 T 3-9, l 10-17.
 L 18-22.
 T 3-9, l 37-46. T 3-10, l 1-13.
 Exhibit 6, Tab 3.
 Exhibit 6, Tab 4.
 Exhibit 6, tab 4. That document contained a specific disclaimer that it did not constitute a valid development approval.
 T 4-22, l 23.
 T 4-37, l 11-20.
 Applicant’s written submissions at para 2.3.
 Paras 5.1 and 5.2.
 Exhibit 6, tab 4, annexure A and associated drawings.
 Exhibit 8.
 See Exhibit 12.
 For the reasons given herein the requested change would clearly have an effect on Lot 6.
 Applicant’s submissions at para 4.23.
 At paras 4.24 and 4.25.
 T 4-16, l 37-47.
 T 4-17, l 1-46.
 Exhibit 6, tab 2.
 Exhibit 6, tab2.
 At tab 4.
 At tab 4, Annexure B and Plan 7605PP3.
 T 4-31, l 45-47.
 At tab 3.
 T 1-7, l 20-22.
 Written submissions at para 4.43.
 At paras 4.44 – 4.46.
 Applicant’s submissions, footnote 11.
 Exhibit 6, tab 8 at paras 1, 2 and 3.
 At paras 4 and 5.
 Affidavit of Mr Buckle, exhibit 4, tab 6 at para 19.
 Mr Buckle Exhibit 4, tab 6, para 22(e). Ms Jose-Buckle, Exhibit 4, tab 2 at para 23(b).
 T2-52 ll15-22.
 T2-47 l1.
 T2–105 l33-45.
 T2-106 l1-14.
 Exhibit 4, tab 2, para 7.
 See also at paras 17 and 23(c).
 T2-93 l17-37.
 Exhibit 4, Tab 4, at p 12.
 Exhibit 10C.
 Proceedings 28 March 2017 T1-53, ll 3-14.
 Proceedings 28 March 2017 T1-53, ll 37-44.
 Proceedings 28 March 2017, T1-51, ll 6-11.
 Ms Jose-Buckle: Ex 4, tab 2, para 17: T2-94 L12-23. Mr Buckle: Ex 4, tab1, para 14 and para 21(d).
 Cases cited included, Walden v Logan City Council  QPELR 640 at -, Cox v Maroochy Shire Council  QPEC 51 at , Bon Accord v Brisbane City Council  QPELR 23 at , Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014 at 1064.
 At paras 4.7-4.9.
  QCA 210 at .
 s 10 of the SPA.
 T4-21, ll 35-42. T4-22, ll 1-19.
 Exhibit 6, Tab 2.
 T4-16, ll 18-21.
 s 374.
 Exhibit 6, Tab 4 and submissions at para 2.4.
Western Australian Planning Commission v Temwood Holdings Pty Ltd 221 CLR 30 per McHugh J at  and  and per Gummow and Hayne JJ at .
  QPELR 385 at  and .
 S 371(e)(ii).
 See at para 23 herein.
- Published Case Name:
Donavon v Brisbane City Council
- Shortened Case Name:
Donavon v Brisbane City Council
 QPEC 9
20 Mar 2020