Stankovic v Brisbane City Council
[2015] QPEC 17
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- Unreported Judgment
- Stankovic v Brisbane City Council[2015] QPEC 17
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Stankovic v Brisbane City Council[2015] QPEC 17
Stankovic v Brisbane City Council[2015] QPEC 17
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Stankovic v Brisbane City Council [2015] QPEC 17 |
PARTIES: | DUSAN STANKOVIC (appellant) v BRISBANE CITY COUNCIL (respondent) |
FILE NO/S: | BD934/14 |
DIVISION: | Planning & Environment |
PROCEEDING: | Hearing of an appeal |
ORIGINATING COURT: | Planning & Environment Court of Queensland at Brisbane |
DELIVERED ON: | 30 April 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 13, 14, 15 April 2015 |
JUDGE: | R S Jones DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – where appellant made application for a development permit for a material change of use for a house, swimming pool and tennis court – where respondent approved development subject to conditions – where respondent alleged appellant carried out unlawful filling works within a designated waterway – where respondent commenced enforcement proceedings against appellant – where dispute resolution process failed to resolve the issue – where appellant appealed respondent’s conditions concerning fill. FILL – whether appellant carried out unlawful filling – whether filling caused ponding on neighbouring land – whether respondent’s conditions concerning fill were reasonably necessary. Sustainable Planning Act 2009 |
APPEARANCES: | Mr T Trotter instructed by Brisbane City Legal Practice for the respondent Mr D Stankovic in person for the appellant |
- [1]This proceeding was concerned with an appeal against certain conditions imposed by the respondent in response to a development application lodged by the appellant. For the reasons set out below the orders of the court are:
- The appeal is allowed subject to the appellant being required to comply with the conditions package of the respondent dated 15 December 2014[2] as modified by the drainage relief works identified in Exhibit 17 of these proceedings save for the requirement to lower the surface level of the access easement;
- The matter be otherwise mentioned at 9:45am on 19 May 2015.
Background
- [2]Sometime in 1995 the appellant purchased a parcel of land located at 126 Beelarong Street Morningside.[3] The site is broadly rectangular in shape (40m x 100m) and is comprised of an area of 4047m2. Of particular significance in the context of this appeal is that the land lies within a designated waterway corridor for the purposes of the City Plan 2000 and City Plan 2014.[4] The land fronts Beelarong Street to the south and then slopes gently downwards in a northerly direction. Perrin Creek lies to the west of the land and runs in a south east to north west direction passing close to the south-western corner of the land. A natural water course or waterway including mangrove growth branches off Perrin Creek and runs into the south-western corner of the land.[5]
- [3]On 22 January 2007 the appellant made an application for a development permit for a material change of use of premises for a house, swimming pool and tennis court.[6] On 20 March 2007 the respondent requested further details of the proposed works raising a number of issues and, in particular, issues concerned with maintaining flood conveyance over the site.[7] On 4 April 2007 the appellant’s town planner responded and advised that:[8]
- “The house is suspended with no filling required. A note will be added to indicate that the undercroft of the house is to remain open. An easement for overland flow will be accepted. …” (Emphasis added)
- [4]That no filling was intended to be introduced to the site was repeated in further correspondence from the town planner on 3 May 2007. That correspondence relevantly stated: “… No filling needs to be introduced to the site.”[9] Subsequent to this correspondence the appellant’s application was approved subject to the swimming pool being removed from the site at ground level and a number of other conditions. Of particular importance was that conditions were imposed requiring the granting of easements to facilitate underground drainage and overland water flow and prohibiting the depositing of any material within the area of the designated waterway corridor. Following a request for a Negotiated Decision Notice, on 18 December 2007, the respondent issued a notice approving the development subject to conditions. The original conditions concerning the granting of easements and the protection of the waterway corridor were repeated but renumbered. The relevant conditions provided:
“8 Granting easements
Grant the following easements:
- (i)Easements for underground drainage, open cut, overland flow and access purposes over that part of the site within the Waterway Corridor and/or that part of the site affected by 100 year Average Interval (ARI) flooding in favour of Brisbane City Council.
10 Waterways Corridor
No material of any description to be deposited within the area of the Waterway Corridor.
17 Ponding of stormwater
Adjoining properties and roads are to be protected from ponding or nuisance from stormwater as a result of the works.”[10]
- [5]Following an inspection of the site by an employee of the respondent, on 14 June 2012, the appellant was issued a Show Cause Notice on the grounds that the respondent reasonably believed the appellant had committed, or was committing, development offences under sections 578 (carrying out assessable development without a permit) and 580 (compliance with a development permit) of the Sustainable Planning Act 2009 (SPA). In particular, the notice outlined that the inspection had revealed that material had been “deposited within the waterway corridor”, which contravened condition 10 of the development approval, and that “the material was not considered to be filling necessary for or incidental to the building work for the house”. The respondent considered the material to be filling that was assessable development requiring a development permit, which had not been obtained by the appellant.
- [6]On 3 July 2012, in response to the Show Cause Notice, the appellant wrote to the respondent advising, among other things:
“1. During recent BCC representatives inspections it was obvious that we have been in process of doing just landscaping, not filling and apart from topsoil for dressing purposes, the mulch was used as well (sic).
…
- From the day one of our construction activities we strictly followed all relevant conditions from the Sustainable Planning Act 2009 and other approvals, geotechnical report and Australian Standards.
…
- The filling of the site within the Waterway Corridor you are referring to in your above mentioned letter did not take place, the levels of the site are the same as before, and in the event of 1:100 years flood there are no obstacles. By the way, on 13 January 2011 the area was not flooded.
…
- There is the distinctive difference between soil replacement just to achieve required bearing capacity without rising levels (as we did), and filling of the site (such is for example Baringa Street development site very close to our site where tens of thousands of cubic metres of fill have been placed within the Waterway Corridor) to get the site above required flood levels.
…
Bearing in mind presented facts, there were no committed offences in terms of Sustainable Planning Act 2009 (sections 578 and 580), compliance with development approval (including any condition in the approval, in particular condition 10), there were no need for any additional development permit, and therefore there are no reasonable grounds for any further action to be taken.” (sic) (Emphasis added).
- [7]On 27 October 2012 the appellant wrote to the respondent again asserting, among other things:
“5. However, we have attached two photos of the site before erection of the house which clearly confirm that the levels of the land are the same as they were before the start of construction, and there is the full compliance to the relevant conditions of the Sustainable Planning Act 2009.” (Emphasis added).
- [8]On 27 November 2012 the respondent issued an Enforcement Notice to the appellant maintaining that material had been unlawfully deposited within the waterway corridor, and more particularly in the north-eastern area of the land. In reliance on section 578 of the SPA, the notice required removal of all fill deposited beyond the footprints of the house and tennis court. The house was located on the more elevated part of the land fronting Beelarong Street while the tennis court was located towards the north-western corner of the land.
- [9]On 30 January 2013 the appellant wrote to the respondent making a number of assertions including:
“4. As mentioned before and shown to BCC representatives on the site, after erection of the approved structures on replaced soil, no filling of the land in terms of rising levels was undertaken, and no additional development permit was required. We also understand that gardening does not require similar permits.
- It is well known that around any new structure some transition area, where engineered soil surface is getting incorporated in to original contours, must exist. These areas shall be considered as ‘necessary for the building work’. The extent of these areas is dependent on specific site conditions. And this is where the problems and misunderstandings are coming from. …” (Emphasis added).
- [10]Notwithstanding these assertions the respondent issued a fresh Enforcement Notice and the appellant took the matter to the Building and Development Dispute Resolution Committees. On 31 July 2013, the committee dismissed the appellant’s appeal primarily on the basis that it did not have the jurisdiction to decide an appeal about an enforcement notice issued in respect of operational works.
Issues in the appeal
- [11]Following the decision of the Building and Development Dispute Resolution Committee, on 18 March 2014 the appellant filed a notice of appeal in this court. The grounds of the appeal were:
- Site work carried out during construction do not adversely impact on the area;
- The removal of material around existing structures to re-establish natural ground;
- The material used for earthworks does not fall into the category “assessable filling”.
- [12]In circumstances where the respondent’s position was that it had no intention of requiring the appellant to remove fill reasonably associated with the building platform for the house and tennis court, ground 2 was redundant. As much was accepted by Mr Trotter, counsel for the respondent and, albeit with some reluctance, by the appellant.[11] Ground 3 was also conceded to be redundant by the appellant as it was primarily concerned with the issues raised in ground two.[12]
- [13]That the subject land lay within a designated waterway corridor was not in dispute. The issues in dispute were:
- Had the appellant carried out filling on the subject land in breach of the development conditions and relevant provisions of the City Plan 2000 and City Plan 2014; and
- Did those works cause ponding which impacted on neighbouring properties; and
- If the answers to questions 1 and 2 were in the affirmative, whether the remedial works proposed by Mr Collins, the hydraulic engineer retained by the respondent, were reasonably necessary to rectify the problems caused by the introduction of fill.
The first issue
- [14]That the appellant introduced material onto the eastern and southern areas of the site is clear. The evidence of Mr Collins, Mr Rodgers, the hydraulic engineer called on behalf of the appellant and Mr Scrogings, a neighbour, puts this matter beyond any reasonable dispute. Indeed the appellant himself acknowledged that he had introduced material onto the site. His justification being, at least as I understand it, that the introduction of such material could not be described as an unlawful activity as neither the provisions of the respondent’s planning scheme nor any of the relevant development conditions were offended. Initially the appellant contended that this was so because any material that was introduced to the site was not, according to him, operational works but were works ancillary to the construction of his house and tennis court. According to him it was all simply part of the “construction process”.[13]
- [15]During cross-examination the appellant, as I understood it, initially maintained that any depositing of material was purely “incidental work”[14] falling within the meaning of building work under the SPA, and therefore would not require a separate development permit.[15] However, as his cross-examination evolved, the appellant resiled from his initial position and instead contended that the real reason for the introduction of the material was to restore his land to its natural or original levels.[16] As best as I could understand the appellant’s evidence on this topic was that between the date he purchased the land in 1995 and the commencement of construction of the house and tennis court, some unidentified persons had taken material from the land creating a borrow pit or pits and stockpiled material on the land causing various depressions. Despite being the owner of the land the appellant was not able to identify who the persons who removed the material were, nor was he able to identify over what period of time those activities took place and where the excavation pit or pits were located and how much material had been removed.
- [16]Overall I found the appellant’s evidence unsatisfactory and created more questions than it answered. It struck me that the appellant was prepared to give a version of events which best advanced his case, at least insofar as he thought so, regardless of just how accurate the information being provided was. The material reveals numerous versions of his including the denial of introducing material onto site beyond building platforms through to any material that was introduced was solely for ancillary works and then later for restoration works. I have already referred to the unsatisfactory evidence concerning the alleged excavation works on his site carried out by a person or persons unknown.
- [17]Regardless of this though, even on the appellant’s evidence material has been unlawfully introduced on to the site. According to Mr Collins the amount of material introduced into the waterway was approximately 329 m3. According to Mr Rogers it was probably closer to 260 m3. The appellant rejected Mr Collins’ estimate considering Mr Rogers’ estimate to be a “closer” estimate.[17] That the appellant was more prepared to accept Mr Rogers’ estimate is perhaps not surprising given that it was based on information provided by him. On 24 January 2014 Mr Rogers wrote to the appellant stating inter alia:[18]
“It is understood that the Brisbane City Council have concerns about fill that has been placed on your property at 126 Beelarong Street. You have indicated that the fill is on the eastern and southern sides of the tennis court at the rear of the property and that the depth of the fill is approximately 200 mm. The approximate extent of the fill is illustrated on Attachment A. (Emphasis added).
Loss of flood storage
The area of fill equates to approximately 1300 m2. The approximate volume of fill would be 1300 m2 x 0.2 m = 260 m3. … ”
- [18]When regard is had to Attachment A the following can be identified: the appellant’s house at the southern end of his property, the tennis court in the north western corner, the location of the fill identified in the delineated area between the house and the tennis court and between the eastern boundary of the tennis court and the eastern most boundary of the subject land and, further to the east the house and land owned by Mr Scrogings and to the immediate north, the house and land owned by Mrs Flanders. Both Mr Scrogings and Mrs Flanders have complained about ponding on their land which they contend was a direct consequence of the placement of material within the waterway by the appellant.
- [19]At one stage it appeared that Mr Rogers was attempting to resile from the fact that it was the appellant who provided him with the details of the amount of fill on the land by suggesting that the appellant might have simply been passing on the nature and details of the allegations made against him by the respondent. On the material before me it is much more likely than not that Mr Rogers was acting on direct information provided by the appellant about the amount of fill he introduced beyond the house and tennis court platforms.
The second issue
- [20]Again the evidence leaves little room for doubt on this issue. It is clear that the material introduced beyond that necessary for the house and tennis court has materially impacted on water flows across the appellant’s land in relatively low impact rain events. Any dispute about whether it was 260 m3 or more material that was introduced by the appellant is largely irrelevant. Whatever the quantity, it has had a significant negative impact on flows across the natural waterway corridor. The statement of Mr Scrogings included a number of photographs showing ponding of water in rainfall events which occurred on 25 January 2012 and 23 January 2015.[19] When taken to some of those photographs, Mr Rogers agreed that what they showed or at least indicated was that the water was ponding because it could not progress, as it ordinarily would have, in a north-westerly direction across the appellant’s land. The term used by Mr Trotter and accepted by Mr Rogers was that the water was “ponding”.[20] It was not put to Mr Rogers by the appellant that what those photographs revealed was flooding from Perrin Creek and or its tributaries and not ponding of overland flow. The appellant said in that regard that that was an oversight on his part resulting from him not having any legal qualifications or prior litigation experience. That may be so, but when the issue was raised with Mr Collins he clearly rejected any such suggestion.[21]
- [21]The evidence of the hydraulic engineers together with that of Mr Scrogings leaves little room for doubt that the material placed in the waterway has materially restricted the natural east to west flow of water across his land. Indeed the appellant himself at one stage seemed to acknowledge that by proposing his own improvements to the drainage system to rectify “flow conveyance” issues associated with his land.[22]
The third issue
- [22]The rectification works initially put forward by Mr Collins involved a cut of approximately 200 mm over an area of the subject land to the east and north of the existing tennis court and the construction of a grassed drainage channel along the eastern and northern boundaries of the subject land.[23] The cut of 200 mm accords with the amount of fill the appellant told Mr Rogers he had put over the eastern part of his land. Following a further site inspection and hearing the evidence of Mr Scrogings concerning the dumping and spreading of concrete over the access easement along the eastern boundary of the subject land through to the property owned by Mrs Flanders, Mr Collins also considered it appropriate to introduce a 225 mm pipe (or two pipes providing similar flow characteristics) under the northern section of the access easement together with the removal of 150 mm from the surface of the access easement over a significant portion of its length.[24]
- [23]During the cross-examination of Mr Collins by the appellant, and also in the appellant’s final submissions, a number of allegations were made designed to discredit his evidence. These allegations included deliberately manipulating his modelling and investigations, intentionally overstating the accumulative effects of filling within the relevant waterway and relying on faulty survey data. I reject all of those criticisms. I found Mr Collins to be a creditable and persuasive witness. I am satisfied that his investigations were as thorough as they could practically be and that his opinions were not only based on sound investigations and assumptions but were also designed to achieve fair and objective outcomes. In this context Mr Collins readily made a number of concessions including the potential for inaccuracy in his assessment of the cumulative effects of filling within the waterway and the possible need for further survey works being carried out before imposing a condition requiring the lowering the level of a portion of the access easement.
- [24]It is significant in this regard that, while Mr Rogers was not given the opportunity to comment on the need to lower the level of some of the access easement, he accepted that otherwise works of the type proposed by Mr Collins were appropriate. After Mr Trotter had taken Mr Rogers through certain paragraphs of his joint expert report with Mr Collins he asked:
“So you’re not in any doubt that works of the kind, that is, of the principle, of the kind, of the direction proposed by Mr Collins are necessary?
Answer: ‘I agree. Yes. That’s right.’”[25]
In re-examination Mr Rogers confirmed that view with the caveat that he didn’t know whether the grassed drain needed to be as wide as Mr Collins contended.[26] Notwithstanding that observation, Mr Rogers provided no further details of his reservations nor did he provide any alternative to the works proposed by Mr Collins.
- [25]The combined evidence of Mr Collins and Mr Rogers have satisfied me that, apart from the removal of material from the access easement, the works proposed by Mr Collins are both necessary and reasonable.
- [26]As I have already observed, Mr Rogers was not given the opportunity to comment on the additional requirement to remove material from the access easement and Mr Collins conceded that further survey work might be required before imposing a final condition dealing with this issue. Indeed in his cross-examination by the appellant Mr Collins said:
“…. I had another look at the driveway, and it is apparent that it’s had a fairly significant topping with concrete that logically would be of the order of 100 to 150 mils, [sic] but it needs a survey, and I’d qualify that before it’s the – final conditions are determined with regard to removal of that 150 mils pavement in the northern section of the access easement that a site survey be carried out to ascertain the actual levels, to confirm that they have been raised.”[27]
In these circumstances I do not consider it appropriate to impose a condition requiring removal of material from the access easement surface.
- [27]In addition to the subject filling being in breach of conditions 10 and 17 and being inconsistent with the objectives of condition 8 of the Conditional Development Approval issued by the respondent, it is also clearly contrary to a number of provisions of City Plan 2000 and City Plan 2014.
- [28]By way of examples concerning City Plan 2000; by causing an increase in flooding and/or drainage problems and increasing flood duration over neighbouring property.[28] And, in respect of City Plan 2014, by impeding overland flow contrary to the Flood Overlay Code and failing to protect flood storage and conveyance within a waterway corridor contrary to the Waterway Corridors Overlay Code.[29]
Conclusions
- [29]The evidence leads me to conclude that:
- The appeal insofar as it is concerned with the removal of fill material associated with the residence and tennis court as constructed (grounds 2 and 3) ought be allowed.
- The appellant had introduced fill material onto his land in breach of conditions 10 and 17 of the appellant’s development approval and was otherwise in conflict with provisions of City Plan 2000 and City Plan 2014.[30]
- The introduction of the fill has interfered with local drainage and overland flows causing water diversion and ponding on neighbouring land.
- Save for the removal of the surface of part of the access easement, remedial works of the type contended for by Mr Collins are both necessary and reasonable.
- The appeal against the imposition of appropriate conditions addressing the ponding issues identified by Mr Collins ought be dismissed.
- [30]Accordingly the orders of the court are:
- The appeal is allowed subject to the appellant being required to comply with the conditions package of the respondent dated 15 December 2014[31] as modified by the drainage relief works identified in Exhibit 17 of these proceedings save for the requirement to lower the surface level of the access easement;
- The matter be otherwise mentioned at 9:45am on 19 May 2015.
Footnotes
[1] See Exhibit 5 pp 140-145.
[2] See Exhibit 5 pp 140-145.
[3] Lot 107 on RP12846.
[4] See generally Exhibit 1 at pp 22, 23 and 24.
[5] See generally Exhibit 5 at p 77.
[6] Exhibit 1 pp 32 – 56.
[7] Exhibit 1 p 57.
[8] Exhibit 1 p 59.
[9] Exhibit 1 p 60.
[10] See Exhibit 1 pp 137 – 139.
[11] Transcript (T) 3-56 L 1-47.
[12] T3-57 L 14-38.
[13] T3-7 L 16-31.
[14] T3-14 L 16.
[15] Sustainable Planning Act 2009, s 10(c)(i).
[16] T3-32, L 35-40.
[17] T3-33, L 18-22.
[18] Exhibit 1, pp 18-20.
[19] Exhibit 8 at pp 71-83.
[20] See generally T1-79 – T1-80.
[21] T2-41, L 10-37.
[22] T3-9, L 25-42.
[23] See Exhibit 5 at pp 137 and 143.
[24] See Exhibits 17 and 20.
[25] T1-81, L 1-3.
[26] T1-84, L 18-29.
[27] T2-52, L 32-37.
[28] Per City Plan 2000 see Exhibit 2 pp 92 and 97.
[29] Per City Plan 2014 see Exhibit 2 pp 187 and 206.
[30] City Plan 2000: Stormwater Management Code, Filling and Excavation Code, Compensatory Earth Works Planning Scheme Policy and the Waterway Code.
City Plan 2014: Flood Overlay Code and Waterway Corridors Overlay Code, Stormwater Code and Filling and Excavation Code.
[31] See Exhibit 5 pp 140-145.