BCC v Cunningham; Eastern Suburbs Leagues Club Ltd v Cunningham
[2001] QCA 294
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- Unreported Judgment
- Appeal Determined (QCA)
- BCC v Cunningham; Eastern Suburbs Leagues Club Ltd v Cunningham[2001] QCA 294
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BCC v Cunningham; Eastern Suburbs Leagues Club Ltd v Cunningham[2001] QCA 294
BCC v Cunningham; Eastern Suburbs Leagues Club Ltd v Cunningham[2001] QCA 294
SUPREME COURT OF QUEENSLAND
CITATION: | BCC v Cunningham & Anor; Eastern Suburbs Leagues Club Ltd v Cunningham & Anor [2001] QCA 294 |
PARTIES: | BRISBANE CITY COUNCIL (first respondent/appellant) v CHRISTOPHER CUNNINGHAM (appellant/first respondent) EASTERN SUBURBS LEAGUES CLUB LTD ACN 009 928 518 (second respondent/second respondent) EASTERN SUBURBS LEAGUES CLUB LTD ACN 009 928 518 (second respondent/appellant) v CHRISTOPHER CUNNINGHAM (appellant/first respondent) BRISBANE CITY COUNCIL (first respondent/second respondent) |
FILE NO/S: | Appeal No 6745 of 2000 Appeal No 6784 of 2000 P&E No 2139 of 2000 |
DIVISION: | Court of Appeal |
PROCEEDING: | Planning and Environment Appeal |
ORIGINATING COURT: | Planning and Environment Court, Brisbane |
DELIVERED ON: | 27 July 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 May 2001 |
JUDGES: | McMurdo P, Thomas JA and Helman J Separate reasons for judgment of each member of the Court, each concurring as to the orders made. |
ORDER: |
|
CATCHWORDS: | LOCAL GOVERNMENT – TOWN PLANNING – CONSENT AND APPROVAL OF COUNCILS (DEVELOPMENT AND USE APPLICATIONS) – APPLICATIONS – PLANNING PROPOSALS – where the club made two applications in relation to land leased from the council – where the only point of overlap was in relation to a car park area – whether the applications were part of an overall scheme – whether there should have been a single application in respect of both applications - whether the rule against ‘piecemeal’ applications according to the principle in Pioneer Concrete should have been applied - where the applications were for separate and different uses – Pioneer does not require two separate and distinct uses be combined in one application LOCAL GOVERNMENT – TOWN PLANNING – APPEALS – QUEENSLAND – PRACTICE AND PROCEDURE – COSTS – where no reason to order the respondent Mr Cunningham to pay costs of proceedings below - s 4.1.23(2)(b) Integrated Planning Act 1997 (Qld) Integrated Planning Act 1997 (Qld), s 4.1.23(2), s 4.1.23(2) (b) Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485, distinguished Stubberfield v Redland Shire Council [1995] 1 Qd R 332, cited |
COUNSEL: | M D Hinson SC for the appellant in Appeal No 6745 of 2000 and for the second respondent in Appeal No 6784 of 2000 W Cochrane for the first respondent R Litster for the second respondent in Appeal No 6745 of 2000 and for the appellant in Appeal No 6784 of 2000 |
SOLICITORS: | Brisbane City Legal Practice for the appellant in Appeal No 6745 of 2000 and for the second respondent in Appeal No 6784 of 2000 Drakopoulos Black for the first respondent Deacons for the second respondent in Appeal No 6745 of 2000 and for the appellant in Appeal No 6784 of 2000 |
- McMURDO P: I agree with the reasons for judgment of Thomas JA and with his proposed orders.
- THOMAS JA: The question in this appeal is whether a judge in the Planning and Environment Court erred in holding that the so-called "rule against piecemeal applications" in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council[1] applied to two applications made by Eastern Suburbs Leagues Club Limited ("the club"). Leave to appeal was granted by the court on 8 September 2000.
- The club made two applications. That which related to redevelopment of an existing pool area may conveniently be referred to as "the pool application", and that which related to redevelopment of the club as "the club application". The pool application has been approved and the club application has not yet been determined. The respondent, Mr Cunningham, commenced proceedings in the Planning and Environment Court seeking a declaration that the Council's approval of the pool development application was "ultra vires the town plan". His application was based upon a claim that there should have first been an Impact Assessment, and that the application should not have been approved because of adverse impact on the amenity of adjoining residential sites. In particular, he objected to the fact that carparking facilities were provided close to his rear boundary.
- There is no legal basis for those submissions. The pool application sought the intensification of an existing use as of right and was a "permitted development" of the type prescribed in column 2 of the table contained in cl 11.3.2 of the City of Brisbane Town Plan. The power of the Council in respect of such applications, when more than minor building work was involved (as here), was the imposition of appropriate conditions. However, during the hearing the learned judge himself raised the question whether the club's concurrent application in respect of the club redevelopment should have been made and advertised as part of the one development. Despite strenuous submissions to the contrary, his Honour expressed the view that both applications were "part of a single grandiose proposal" and that he had "the strong impression of an integrated overall plan". His Honour upheld the "piecemeal applications" point and proceeded to declare the Council's approval of the pool application ultra vires.
- I have difficulty in finding evidence to justify his Honour's view that there was a single grandiose proposal. The club's premises, which include a ground where football matches are played and a club house, are leased from the Council. The club's history, which goes back some 34 years, reveals progressive development of the club house. The club's lease is over part only of a large parcel of land extending south from Norman Creek to a residential area close to Old Cleveland Road. The Council's land (Lot 1) includes the Club, an adjoining Bowls Club and the Langlands Park Swimming Pool area. The pool area was formerly leased to another lessee, but in 1996 the club developed an interest in the site. In 1998, as the result of a tender, the Club obtained a one year lease from July 1999. This was apparently to facilitate redevelopment proposals which, if approved by the Council, would result in a 30 year lease to the club. The proposed lease requires the club to keep the redeveloped swimming pool complex open for public use on payment of prescribed fees. It is also made subject to various other conditions which are aimed to ensure operation as required by the Council.
- The club's initial proposal did not seek the provision of any carparking associated with the pool complex. It was the club's desire to obtain some carparking rights to the unused area to the south of the swimming pool for its club redevelopment, and if it was approved, to use that area not only for club purposes but to accommodate parking for the pool redevelopment. That area may conveniently be referred to as "the carpark area". However, the Council indicated that the provision of a carpark area would be required as a condition of approval of the proposed pool redevelopment. In the event, although the applications are primarily in respect of different areas, both applications were prepared and lodged so as to include the carpark area in the land the subject of the application.
- The club redevelopment application is for the adding of a food court, gaming space and additional bar areas. As earlier indicated, it also requests approval be given to the use of the carpark area south of the swimming pool for club purposes. The evidence shows that the club does not intend to use the carpark which has been approved as part of the pool redevelopment for any purpose unassociated with pool redevelopment unless and until the Council gives approval for such use. Indeed, it could not lawfully do so.
- Any rational analysis of the evidence shows that the club's desire for eventual double usage of part of the pool carpark has never been concealed. Whether or not one characterises separate projects which overlap in one respect only as a grandiose scheme does not in the end matter. There is one point of overlap, and that is the circumstance upon which it must be decided whether the Pioneer case mandates a single application in respect of both matters.
- The respective applications are for different uses and are subject to entirely different streams of advertisement, objection and determination under the City of Brisbane Town Plan. The use the subject of the swimming pool application was "outdoor sport and recreation". The use the subject of the club application was that of "licensed club". The pool application is described as a "code assessable" application, and as earlier indicated could not be refused by the Council, although conditions could be and were imposed. Members of the public have no rights of appeal against the approval of such an application. The club application is described as an "impact assessable" application, that is to say it requires an Impact Assessment Study to be provided. Public notification is necessary, and members of the public have rights of objection and appeal.
- The pool application had of course already been approved by the Council subject to prescribed conditions prior to the commencement of Mr Cunningham's proceedings. The club application had been advertised and had attracted objections, including one from Mr Cunningham. As earlier noted, it has not yet been determined.
- The essential requirement of the decision in Pioneer Concrete is that the proposed use "must be stated in appropriate detail in one application and all the land involved in the use must be the subject of the application".[2] There is no rule prohibiting the making of more than one application in respect of the one piece of land or part of a parcel of land. The Pioneer principle required that each application for a use for a particular purpose be for the whole of the use (including incidental and necessarily associated uses) and for the whole of the land devoted to that use. It did not require that two separate and distinct uses be combined in one application.
- Even on the learned judge's view that both applications proceeded from the one club as part of an integrated overall plan, it is still necessary to examine the uses in question and the extent to which each application identifies the land over which such use is sought. Pioneer is concerned with the sufficiency of an application by reference to its subject matter (the use and the land on which that use and ancillary uses are intended). It does not forbid the inclusion in one application of multiple uses for multiple purposes. Whilst in certain circumstances it prohibits what are conveniently referred to as "piecemeal applications", it does not place an embargo upon staged development except in the circumstances stated.
"All this, of course, places no obstacle in the way of applications where consent becomes necessary for the extension of an existing use to adjoining land or where an applicant for consent to a proposed use contemplates that there will later be an extension of that use. It is only where land is proposed to be used for the one purpose at the one time that consent for its use must be applied for in the one application."[3]
- A similar attempt to read too much into Pioneer failed in Stubberfield v Redland Shire council.[4] The court observed:
"There are no significant parallels between this case and what was decided in Pioneer. Here, the subdivisional application related to the entirety of Paradise Grove's land. While it is correct that that application did not relate to the second phase of what Paradise Grove proposed, it dealt comprehensively with the first phase which was relevantly comprehensive and self-contained. There was no need for the local authority to consider matters which were involved in the combined application and the outcome of the combined application was not determined or influenced by a favourable decision on the subdivisional application."[5]
- The same description (comprehensive and self-contained) properly applies to the present applications.
- If one applies the "critical integers" described by Stephen J in Pioneer Concrete,[6] namely, land and use, it would seem that his Honour in the present case regarded the carparking area (ie the land) and the circumstance that a later decision could be made which would allow it to be used for another purpose as sufficient to render the applications invalid. However, as Stephen J pointed out, "the land is merely the passive object which is being used; the active integer, use, will determine its extent".
- If there is some long term desire on the part of the club to solve its parking problems through usage of this particular carpark, it will be necessary for it to satisfy the Council that this is an appropriate use in relation to the club application. The application for that particular use might be refused or it might be made subject to conditions. It is not as if the making of these two applications has deprived Mr Cunningham of the opportunity of objecting to such a usage. The club exposed its intention and Mr Cunningham has in fact objected. If he or any other objector does not agree with the Council's decision he may appeal. The approval of the carparking area for carparking for pool patrons, which is ancillary to the pool use, in no way makes it difficult for the Council to forbid use of that area by club patrons, ancillary to the club use, if the Council is minded not to approve the use of that carparking area for club purposes. In my view the club has not breached any town planning requirement and the making of two separate applications in the circumstances of the present case does not fall within any principle expressed in Pioneer Concrete.
- In the present case the essential separateness of the applications is emphasised by the two regimes that are in place for dealing with them. Whilst it would have been theoretically possible for both applications to be combined, separate parts of that application would then have had to have been separately advertised and separately dealt with. In substance the pool application would have to have been granted, and the club application would have to be decided after taking due account of objections. I am at a loss to know what Mr Cunningham has lost by reason of the bringing by the club of the two applications in the manner chosen.
- In my view his Honour erred in purporting to apply the Pioneer Concrete principle, and in declaring that the Council's approval of the swimming pool application was ultra vires. The appeal must be allowed.
Costs
- Before the application was heard in the Planning and Environment Court the club's solicitors wrote to Mr Cunningham informing him of their view that the application was without foundation, and indicating that costs would be claimed if he persisted. Section 4.1.23(2)(a) of the Integrated Planning Act 1997 strictly limits the occasions when costs may be ordered against a party in that court. In the present case it was submitted that the application was "frivolous or vexatious".[7] However, Mr Cunningham's concerns are at least understandable, and despite their lack of legal merit I am not prepared to hold that his application was an abuse of process or frivolous or vexatious. I would therefore not accede to the making of an order that he pay the costs of the proceedings below.
- So far as the appeal is concerned, each appellant is entitled to its costs. However, as the decision was given upon a point initiated entirely by the learned judge, the unsuccessful respondent should have an Appeal Costs Fund certificate.
Orders
1. In appeal No 6745 of 2000 the appeal is allowed; the order of the Planning and Environment Court dated 2 August 2000 is amended by setting aside the declaration in paragraph 2 thereof and replacing it with an order that the application be dismissed.
- In appeal No 6784 of 2000 the appeal is allowed; the order of the Planning and Environment Court dated 2 August 2000 is amended by setting aside the declaration in paragraph 2 thereof and replacing it with an order that the application be dismissed.
- In each appeal the respondent, Mr Cunningham, is ordered to pay the costs of the appeal including the application for leave to appeal, and the respondent is granted an indemnity certificate in respect of each appeal.
- HELMAN J: I agree with the orders proposed by Thomas J.A. and with his reasons.