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Steendyk v Brisbane City Council[2016] QPEC 47

Steendyk v Brisbane City Council[2016] QPEC 47

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Steendyk v Brisbane City Council & Ors [2016] QPEC 47

PARTIES:

BRIAN STEENDYK

Applicant

v

BRISBANE CITY COUNCIL

First Respondent

&

ELLEN AND KEVIN CALDER-POTTS

Second Respondents

FILE NO/S:

3982/15

DIVISION:

Planning and Environment Court

PROCEEDING:

Hearing

DELIVERED ON:

16 September 2016

DELIVERED AT:

Brisbane

HEARING DATE:

8 and 18 August 2016

JUDGE:

Bowskill QC DCJ

ORDER:

The originating application filed on 17 March 2016 is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – Application for declaratory relief in relation to the Council’s decision to approve a permissible change to an existing development approval – Whether, in determining whether proposed change was a permissible change under s 367(1) of the Sustainable Planning Act 2009, the responsible entity is required to have regard to the matters in s 374 of that Act – Whether the subsequent owner continues to be bound by an earlier development approval which is no longer relied upon – Scope of the material before the Council’s delegate when making the decision - Whether the Council’s delegate can be imputed to have knowledge of matters not referred to in the material before the delegate, but within the broader corporate knowledge of the Council – Whether the decision was legally unreasonable – Whether the delegate failed to take into account relevant considerations, or took into account irrelevant considerations – Whether appropriate to grant relief, in the exercise of the discretion conferred by s 456 of the Sustainable Planning Act 2009.

Acts Interpretation Act 1954, ss 14 and 14B

Sustainable Planning Act 2009, ss 245, 313, 314, 347, 367, 369, 374, 375 and 456

Australian Retailers Association & Ors v Reserve Bank of Australia (2005) 148 FCR 446

Avel Pty Ltd v Jerdway Pty Ltd [1998] QPELR 62

Bon Accord Pty Ltd v Brisbane City Council [2010] QPELR 23

Dunlop v Woollahra Municipal Council (1975) 2 NSWLR 446

Ferreyra v Brisbane City Council [2016] QPELR 334

Genamson Holdings Pty Ltd v Caboolture Shire Council (2008) 163 LGERA 386

Gladstone Regional Council v Homes R Us (Australia) Pty Ltd [2015] QCA 175

Jones v Dunkel (1959) 101 CLR 298

Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563

Landel Pty Ltd and Landrex Pty Ltd v Redland Shire Council [2001] QPELR 480

Liquorland (Australia) Pty Ltd v Gold Coast City Council (2002) 121 LGERA 197

Mac Services Group Ltd v Belyando Shire Council [2008] QPELR 503

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council [2015] QPELR 462

Peet Flagstone City Pty Ltd & Anor v Logan City Council & Ors [2015] QPELR 68

Rofail v Wells [2011] QPEC 125

Stevenson Group Investments Pty Ltd v Nunn [2013] QPELR 1

Sunshine Coast Regional Council v Sugarbag Road Pty Ltd [2012] QPELR 139

Warringah Shire Council v Sedevic (1987) 10 NSWLR 335

Westfield Management Ltd v Brisbane City Council [2003] QPELR 520

COUNSEL:

K Wylie for the Applicant (direct brief)

N Kefford for the First Respondent

R Laidely for the Second Respondents

SOLICITORS:

Brisbane City Legal Practice for the First Respondent

McCarthy Durie Lawyers for the Second Respondents

A.Introduction

  1. [1]
    Mr Steendyk is an architect who owns a property at 27 Isaac Street in Spring Hill.  He bought the property in 1998, and later carried out renovations to the existing workers’ cottage which was on the land.  Mr and Mrs Calder-Potts own a property at 18 Union Street, Spring Hill, which they bought in September 2010.  Isaac Street and Union Street run parallel to one another.  The houses on Mr Steendyk’s side of Isaac Street share their rear boundaries with the houses on the Calder-Potts’ side of Union Street.  Mr Steendyk and the Calder-Potts do not share a rear boundary.  Mr Steendyk’s house is effectively one house removed from the house that does share a rear boundary with the Calder-Potts.[1] 
  2. [2]
    In brief terms, in 2014 the Calder-Potts applied to the Council for approval to make a permissible change to a development approval granted to the previous owner of their property, in 2010.  Among other things, one of the changes they sought was to enable them to alter part of the verandah on the north western side of their house, so that instead of having an open timber balustrade and above that, fixed lattice screens; that part of the verandah would be partially enclosed, with a solid weatherboard wall to 1 metre, and above that folding shutter screens (which are moveable, both in terms of the louvres of the screens themselves, and also in terms of the screens being able to be opened).  Their request to make this change was approved by the Council, and the works have been constructed.
  3. [3]
    Mr Steendyk objects to this change, because he says it impacts on the privacy and amenity he has become accustomed to enjoy at his home.  The effect of what Mr Steendyk says is that the Calder-Potts should be required to maintain fixed privacy screening on this part of their verandah. 
  4. [4]
    By an originating application, filed on 17 March 2016, Mr Steendyk has sought declarations, under s 456 of the Sustainable Planning Act 2009 (Planning Act), in the following terms:

“1. A Declaration that the change the subject of the Request to change an existing approval pursuant to section 369 of the Sustainable Planning Act 2009 (SPA), lodged by Ken Ryan and Associates Pty Ltd on behalf of Ellen and Kevin Calder-Potts with the Respondent, Brisbane City Council, on 9 October 2014, is not a permissible change within the meaning of section 367 of the SPA;

  1. A Declaration that the decision of the Brisbane City Council made on the 20 November 2014 and notified to Ken Ryan and Associates Pty Ltd by letter dated 20 November 2014, is of no force or effect;
  2. A Declaration that the removal of privacy screens that were conditioned as part of the Judgment handed down by the Planning and Environment Court (412 of 2002) constitutes a development offence under section 580 of the SPA;
  3. Any consequential directions and orders that the Court deems appropriate.”[2]
  1. [5]
    The grounds relied upon by Mr Steendyk may be better understood, after the factual context is explained in more detailed.

B.Factual context – in more detail

  1. [6]
    The suburb where Mr Steendyk and Mr and Mrs Calder-Potts live, Spring Hill, is an inner-city suburb of Brisbane.  As described by Ms Morrissy, a town planning consultant, Spring Hill has “an intense urban form, which can be attributed to (a) a very high presence of small lots; and (b) houses on the small lots, built to boundary or closely set to front and side boundaries”.[3]  It is aptly described by Mrs Calder-Potts as “close-living with neighbours on relatively small-lot houses … [and] also a number of residential units”.[4]
  2. [7]
    As already noted, Mr Steendyk purchased his property, at 27 Isaac Street, in 1998.  It is a small lot, having an area of 202m2.   The area of 18 Union Street is larger, being 397m2.
  3. [8]
    In 2001, the previous owner of 18 Union Street made a development application to the Council, for a material change of use for the purpose of alterations and additions to the existing house on that land.  Mr Steendyk made a submission objecting to the application, among other things, on the basis that alterations proposed to the outdoor living spaces on the western corner of the original house would have an impact on the privacy and amenity of his property.[5]
  4. [9]
    The Council granted the approval.   Mr Steendyk appealed that decision, to this court, in 2002.  The appeal was resolved by negotiation, with certain changes to the proposed development being agreed to.  These are reflected in the development approval which was then granted by the court, by consent, in August 2002 (the 2002 court approval).[6]
  5. [10]
    The 2002 court approval included a condition 5(b) which required the owner to “[i]nstall fixed privacy screens generally as illustrated on Plan number SK815535-A in locations as per the approved plans”.  It also included a condition 6(a) which required “fixed privacy screens up to 1.8 metres above floor level to the sides of all balcony(s)/verandah(s)”.[7]  In terms of condition 5(b), the “privacy screens” were timber (plantation type) louvred screens,[8] which the plans showed as being installed on three of the walls around part of the verandah (or terrace as it is described on the plans) on what I understand to be the north west, and west side of the house (essentially, the two walls which would face the rear boundary of the property, and the short part of the wall in between).[9]   According to the plans, there was no proposal for these “fixed louvred screens” to be installed along the main north western side of this verandah (which is the part of the verandah at the centre of the present dispute).  What the plans show on that side of the verandah is the open timber balustrade, and then above that, lattice privacy screens.[10]   
  6. [11]
    Mr Steendyk says that, after the 2002 court approval was granted, the former owner of 18 Union Street carried out the works approved, including the works involved to the verandah on the western corner, and installation of the “fixed plantation-type louvers”.[11]  
  7. [12]
    After 2002, Mr Steendyk proceeded to develop his own house, at 27 Isaac Street, in accordance with his own design.  As he explains in his affidavit, certain aspects of the design of the house include “the use of full floor to ceiling windows along the entire rear upper floor of [the] property (with sheer, translucent curtains that do not effectively operate as a privacy screen), and use of floor to ceiling windows on the lower living area of my property (with no screening whatsoever)”.[12]   He completed the construction of his house in late 2005.
  8. [13]
    In 2010, the previous owner of the 18 Union Street property lodged a further development application with the Council, for a development permit for a material change of use, and preliminary approval for building work comprising further alterations to the house.  Under the planning scheme provisions in effect at the time, this application was impact assessable. One of the changes proposed was to alter the western corner of the verandah, to turn it into an enclosed pantry.[13]  Mr Steendyk says he reviewed the 2010 application, and had no significant concerns about the proposed development, because it did not appear to involve any change to the deck structure on the western corner of the house (other than the pantry) or to the type of screening installed.[14]
  9. [14]
    The 2010 plans, in the location of the deck (as it is described on these plans) on the north western side, provides for “new privacy screens to match existing”.[15] 
  10. [15]
    Nevertheless, he says that “out of an abundance of caution”, he telephoned the Council officer nominated on the public notification sign (Mr Gillham), told him about the 2002 appeal, and subsequent court approval; noted that the 2010 application did not appear to show any changes affecting the deck/terrace structure and screening, but that if there was any doubt about whether the screening requirements may be removed or reduced, he would lodge a submission “to ensure that I would retain the privacy and amenity that my property was currently enjoying”.  Mr Steendyk says that Mr Gillham assured him that any development permit issued for the 2010 application would include the same conditions requiring fixed screening, as was included in the 2002 court approval.  Mr Steendyk says, on that basis, he elected not to make a submission in relation to the 2010 application.[16]   There was no other evidence, apart from Mr Steendyk’s, before the court about this conversation.
  11. [16]
    In due course, a development permit, for a material change of use, and preliminary approval, for the building work, was granted in October 2010 (the 2010 approval).[17]  Although there is a specific condition in the 2010 approval regarding “fixed screening to rear deck”, it is only in relation to a part of the rear deck on the south west elevation,[18] so not in relation to the north west part of the house, the subject of this dispute.  On the plans approved by the 2010 approval, in relation to the north western part of the verandah there is a reference to “new privacy screens to match existing”[19] and “new timber privacy screens to deck 1800 mm high”[20] (but no use of the word “fixed”).
  12. [17]
    It seems that some of the works contemplated by the 2010 approval were commenced, by the previous owners, however, they were not completed.[21]
  13. [18]
    The Calder-Potts purchased the property at 18 Union Street in September 2010.   Mr and Mrs Calder-Potts say that at the time they purchased the property, they were not aware of any earlier court or Council approvals for the renovations that had previously been undertaken to the property.[22]
  14. [19]
    At the time the Calder-Potts purchased their property, along the whole length of the north western (side) and north east (front) verandahs of the house there was a 1 metre high balustrade, of open timber battens, and above that, fixed lattice screens.[23]  Mrs Calder-Potts says that, upon moving into their home, they found these “confining”, and later on (it seems around early to mid-2013[24]) in order to alleviate that effect, arranged for two of the fixed lattice screens on the north western verandah to be hinged, so that they could be opened inwards.[25]
  15. [20]
    That prompted a complaint from Mr Steendyk, initially to the Calder-Potts, by yelling at them from his back yard, and then to the Council.   Although the Calder-Potts had not previously been aware of any court orders or conditions applying to the use of their property, on being advised by a Council officer that that there was a requirement for the lattice screens to remain fixed, they no longer hinged them up.[26] They subsequently engaged a town planning consultant, in order to assist them to make a request to Council for various changes to be made to the existing development approval, including to the north western part of the verandah.[27]
  16. [21]
    Their application for approval to make a permissible change to the 2010 approval was made in September 2014, and granted in November 2014 (2014 change approval).[28]  Relevantly to this proceeding, the approved change involves the removal of the balustrade and lattice screens on the north western side of the verandah, to be replaced by 1 metre high solid weatherboard cladding, above which there are folding timber shutter screens to the ceiling.[29]  What was a part of the verandah, with an open balustrade, and fixed lattice to the ceiling, is now more of a casual living area, with a solid weatherboard wall to 1 metre, and then the folding shutter screens above that.[30]  The other parts of the verandah, on the western corner, and at the rear of the property, are entirely enclosed.[31]  The 2014 change approval also deals with some other changes to the 2010 approval as well.
  17. [22]
    In July 2015 the Calder-Potts obtained a building development approval, in the form of a development permit, from a private certifier,[32] which, taken together with the 2010 approval, and the 2014 change approval, authorised the building work to be carried out.  These works have been constructed.
  18. [23]
    Mr Steendyk had been unaware of the 2014 application made by the Calder-Potts.  Upon noticing the changes when they were constructed, he says in about September 2015, Mr Steendyk set in train the current proceedings.  He says that, had he been aware of the 2014 application, he would have made a submission objecting to the changes.[33]
  19. [24]
    He objects to the design of the changes to this part of the Calder-Potts’ home because he says it impacts on the privacy and amenity of his house.  He says he has, and continues to hold “real concerns with the works” undertaken in accordance with the 2014 change approval, because they “have had a real effect on the amenity and privacy” of his house on his land, in circumstances where, with the moveable louvres on the western edge of the deck structure in the open position, occupants of the room can clearly see the rear yard of his house, part of the lower floor and into both bedrooms on the upper floor of his house.[34]
  20. [25]
    In contrast to this, Mrs Calder-Potts says that “the obvious view corridor from our residence is to the north-west, towards Gregory Terrace and the skyline, and certainly not to the Steendyk property.  It takes a deliberate turning of the head to look to the Steendyk property and the other properties on Isaac Street…”.  She also says that “it is very difficult to obtain a direct view into the Steendyk premises because:
    1. (a)
      there is a distance of some 20 metres or more between the respective buildings; [and]
    2. (b)
      there is an intervening verandah post, verandah balustrade, large Yukka shrub, a large palm tree and Bamboo vegetation which substantially impedes the view corridor …”[35]
  21. [26]
    What Mrs Calder-Potts describes is depicted in photographs annexed to her affidavit, at pp 2-5.
  22. [27]
    The Court had the benefit of an inspection of both the Calder-Potts’ home, and Mr Steendyk’s home, which of course is not evidence in itself, but aids to understand the evidence.  I have no difficulty accepting the evidence of Mrs Calder-Potts on this point.  There being no evidence to indicate Mr Steendyk has ever been inside the Calder-Potts’ home (and that seeming very unlikely in the context of this protracted dispute), I do not accept his evidence, as to what can be seen from the Calder-Potts’ home, when the shutters are open.

C.2014 application and 2014 change approval

  1. [28]
    The application made by the Calder-Potts in 2014 was a request to extend the relevant period before the 2010 approval expired under s 383 of the Planning Act, and to make some changes to the 2010 approval under s 369 of the Planning Act.  It was expressly, in both respects, in relation to the development permit issued on 27 October 2010, bearing the number A002836740.[36]
  2. [29]
    The application was accompanied by a report from Ken Ryan & Associates, town planning consultants, dated 29 September 2014.  Relevantly, that report included the following:

“… The original application was subject to Impact Assessment and there were no properly made submissions.  In accordance with the provisions of the new planning scheme (City Plan 2014), the level of assessment for a Dwelling House which does not comply with the Acceptable Outcomes of the Dwelling House (Small Lot) Code requires Code Assessment.  This level of assessment is not altered by the Petrie Terrace and Spring Hill Local Plan or the applicable overlays.  Therefore, lodging a new application would not create rights by a submission.

…

Permissible Change (s 369 of the SPA)

In conjunction with the extension to the relevant period, the owners are seeking a Permissible Change to the development approval to replace the approved plans with the plans attached as part of this request.

…

The north-western elevation of the existing roofed deck area is proposed to be enclosed with 1.0 metre high weatherboard cladding with shutter screens above in lieu of the approved full-length fixed privacy screens…

The deck is located approximately 2.7 metres from the western boundary and the proposed shutter screens (which will be able to open and close) will not result in a loss of privacy for the adjoining dwelling to the west…

It is also proposed to enclose the rear portion of the deck with new weatherboard cladding as opposed to the existing privacy screening…

The approved plans show a store room between the carport and terrace at the lower level.  The store room has been deleted from the proposal plans and instead the original carport roof will be extended to meet the new carport and will provide a roofed terrace area…

The amended plans will remove the proposed stairs from the existing deck at the upper level to the terrace below.  Alterations are proposed to the internal layout of the dwelling at the upper and lower levels…

[After referring to s 369 and 367 of the Planning Act, and the Statutory Guideline on the meaning of “substantially different development] …

The original approval was sought under the now superseded City Plan 2000.  The approval was subject to Impact Assessment – Generally Inappropriate due to minor non-compliances with the Small Lot Code.  There were no properly made submissions for the original application.  If the application were lodged under the current City Plan 2014, it would be subject to Code Assessment and therefore would not create rights by a submission.”[37]

  1. [30]
    A “report and recommendation” in relation to the permissible change request, and request to extend the relevant period, was prepared by Ms Aimee Spoor, on 19 November 2014.[38]  The report addresses the various criteria within the meaning of “permissible change” in s 367(1) of the Planning Act.   There is no dispute in this case about the conclusion reached in relation to s 367(1)(a) or (b).  
  2. [31]
    Section 367(1)(c) is to the effect that a permissible change, for an approval for assessable development that previously required impact assessment, is a change to the approval that would not, because of the change “be likely, in the responsible entity’s opinion, to cause a person to make a properly made submission objecting to the proposed change, if the circumstances allowed”.
  3. [32]
    In relation to that matter, Ms Spoor’s report said:

“The proposed change will not result in significant new impacts.

The proposed change is not likely to cause a person to make a properly made submission objecting to the proposed change, as any new application would be code assessable”.

  1. [33]
    Ms Spoor’s recommendation was that both the request to change the approval, and the request to extend the relevant period, be granted.  Mr Tim O'Leary, Senior Urban Planner, as the delegate of the Council, subsequently made a decision in those terms, on 20 November 2014.  His decision makes reference to the submission by Ms Spoor, and records that, “having considered the application detailed above, I am satisfied that the request to change the existing approval and request to extend the relevant period accords with the requirements of the Brisbane City Plan 2014 and the Sustainable Planning Act 2009 where applicable and as such approve the request…”.[39]

D.Grounds relied upon by Mr Steendyk in seeking the substantive relief

  1. [34]
    The grounds relied upon by Mr Steendyk, in seeking the declarations in his originating application, may be summarised as follows.
  2. [35]
    First, that the Council did not have jurisdiction to deal with the Calder-Pott’s 2014 application for approval to change the 2010 approval, because what the Calder-Potts’ were required to seek to change was the 2002 court approval, and only the Court has jurisdiction to do that, under s 369(1)(d) of the Planning Act.[40] 
  3. [36]
    Second, that in making the decision that the proposed changes were permissible changes within the meaning of s 367(1), the Council failed to take into account relevant considerations in determining whether the requirement of s 367(1)(c) was met, namely:  Mr Steendyk’s submission to the previous owner’s 2001 development application; his 2002 appeal (as well as the negotiation and resolution of that appeal); the 2002 court approval; the 2010 application for development approval by the previous owner; Mr Steendyk’s conversation with a Council officer in relation to the 2010 application; the 2010 approval; Mr Steendyk’s complaint to the Council, in July 2013, when the lattice screens were raised; the Council’s actions in response to that complaint; and “whether the moveable screens would result in a loss of privacy or amenity for any other dwellings apart from the dwelling immediately adjoining the Union Land to the west”.[41]
  4. [37]
    Third, that in considering whether s 367(1)(c) was satisfied, the Council took into account an irrelevant consideration, in considering “whether the proposed change, considered independently of the original approval, would or would not now be code assessable”.[42]
  5. [38]
    Fourth, that against the background of matters set out in the originating application (and largely reflected in the summary of the factual context above), the Council’s decision was so unreasonable that no reasonable local government could have made it.[43]   As was made clear at the hearing, by counsel for Mr Steendyk, the contention is that it was unreasonable for the Council’s decision-maker to form the opinion that the change sought to be made would not be likely to cause Mr Steendyk (as opposed to hypothetical submitters more generally) to make a properly made submission, given the history of his engagement with the previous land owner, and the Council, in relation to earlier applications.
  6. [39]
    Both the Council and Mr and Mrs Calder-Potts oppose the grant of the relief sought by Mr Steendyk, in the first instance, on the basis that none of these grounds for vitiating the Council’s 2014 change approval decision have been made out and, in any event, on the basis that there are overwhelming discretionary considerations which would militate against the grant of the relief Mr Steendyk seeks.
  7. [40]
    It is well-established that the function of the court in proceedings which seek declaratory relief of the kind sought by Mr Steendyk are analogous to judicial review proceedings.[44]  Consequently, the same constraints apply.  As observed by French CJ, Bell, Keane and Gordon JJ in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 327 ALR 8 at [23]:

“These constraints are aspects of the scope of judicial review of administrative action, which is confined to the legality of the Delegate’s decision.  In particular, judicial review is concerned with whether the Delegate’s decision was one which he was authorised to make; it is not:

‘an appellate procedure enabling either a general review of the … decision… or a substitution of the … decision which the … court thinks should have been made.’”

  1. [41]
    The burden is on Mr Steendyk, as the applicant, to demonstrate that the Council’s decision was affected by jurisdictional error. 

E.Some threshold issues of construction

  1. [42]
    There are some matters concerning the proper construction of parts of the Planning Act that were the subject of dispute in this proceeding, and which it is useful to deal with at the outset, as the resolution of them affects the determination of the grounds relied upon by Mr Steendyk.

(1)Decision-making process, in relation to request to make a change

  1. [43]
    The first issue concerns the process which is involved when a person makes a request to make a permissible change to a development approval, under s 369 of the Planning Act.

Statutory framework

  1. [44]
    Chapter 6, part 8, division 2 of the Planning Act, which contains the provisions dealing with changes to approvals which have been granted, is divided into three sub-divisions.
  2. [45]
    Subdivision 1 is headed “preliminary”, and contains ss 367 and 368.  The only changes that can be made under this part are “permissible changes”.  That concept is defined in s 367 as follows:

“What is a permissible change for a development approval

  1. (1)
     A permissible change, for a development approval, is a change to the approval that would not, because of the change –
  1. (a)
     result in substantially different development; or
  1. (b)
     if the application for the approval were remade including the change –
  1. (i)
     require referral to additional concurrence agencies; or
  1. (ii)
     for an approval for assessable development that previously did not require impact assessment – require impact assessment; or
  1. (c)
     for an approval for assessable development that previously required impact assessment – be likely, in the responsible entity’s opinion, to cause a person to make a properly made submission objecting to the proposed change, if the circumstances allowed; or
  1. (d)
     cause development to which the approval relates to include any prohibited development.
  1. (2)
     For deciding whether a change is a permissible change under subsection 1(b) or (d), the planning instruments or law in force at the time the request for the change was made apply.”[45]
  1. [46]
    Section 368 provides for an applicant to give certain entities notice about their proposed change, before making the request.
  2. [47]
    Subdivision 2 is headed “procedure for changing approvals”, and contains ss 369-372.   Section 369(1) provides, relevantly, that:

“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 –

[none of (a) to (c) are applicable here] …

  1. (d)
     if the approval was given by the court – the court;
  1. (e)
     for another change or approval – the assessment manager for the application to which the approval relates.”[46]
  1. [48]
    Sections 370-372 set out other procedural requirements, including the form of the request, the requirement for payment of a fee, the need for owner’s consent in certain circumstances, and the requirement for a copy of the request to be given to other entities, in certain circumstances.
  2. [49]
    Subdivision 3 is headed “assessing and deciding request for change”, and contains ss 373-377.   Section 374 deals with the assessment of the request, by providing as follows:

“(1) To the extent relevant, the responsible entity must assess the request having regard to –

  1. (a)
     the information the person making the request included with the request; and
  1. (b)
     the matters the responsible entity would have regard to if the request were a development application; and
  1. (c)
     if submissions were made about the original application – the submissions; and
  1. (d)
     any notice about the request given under section 373 to the entity; and
  1. (e)
     any pre-request response notice about the request given to the entity.
  1. (2)
     For subsection (1)(b), the responsible entity must have regard to the planning instruments, plans, codes, laws or policies applying when the original application was made, but may give the weight it considers appropriate to the planning instruments, plans, codes, laws or policies applying when the request was made.”[47]
  1. [50]
    Following that assessment, the responsible entity must decide to approve the request, with or without conditions, or refuse the request (s 375(1)), and then give notice of the decision (s 376).

Process where application for permissible change is made

  1. [51]
    The Council and the Calder-Potts submitted that there are essentially two steps to the process.  First, the responsible entity is required to determine, as a jurisdictional matter, whether the change requested is a “permissible change”, within the meaning of s 367(1).  The responsible entity only has jurisdiction to assess and decide a request to make a permissible change.  This decision is made by reference only to s 367(1), assisted by the Statutory Guideline which has been made as to the meaning of “substantially different development”.  If that jurisdictional matter is determined favourably to the applicant, the next step requires the responsible entity to assess the request for change, under s 374, and then to decide the request, under s 375.  So the determination of jurisdiction (under s 367(1)) is a separate step to assessment of the request (under s 374). 
  2. [52]
    Mr Steendyk submits that this is incorrect, and that for the purposes of considering whether a change requested is a “permissible change”, the responsible entity is required to have regard to the matters set out in s 374.   Under s 374(1)(b), those matters include “the matters the responsible entity would have regard to if the request were a development application”.    For an application that is code assessable, those matters are identified in s 313.  For an application that is impact assessable, the matters are identified in s 314.  Under s 313(3)(b), the assessment manager is required to assess the application having regard to, inter alia, “any development approval for, and any lawful use of, premises the subject of the application or adjacent premises”.  Section 314(3)(b) is in the same terms.
  3. [53]
    The significance of this issue therefore lies in the much broader range of matters the responsible entity may be required to have regard to, “to the extent relevant”, if s 374 applies when considering whether the proposed change is a permissible change.
  4. [54]
    In my view, the construction contended for by the Council and the Calder-Potts is correct, for the following reasons.
  5. [55]
    It is correct to say that the only change a responsible entity has the power (jurisdiction) to approve is a “permissible change”.  Indeed, the only change a person may request is a “permissible change”.   This is apparent from s 369(1), which is in terms that “[i]f a person wants to make a permissible change to a development approval, the person must by written notice ask the … responsible entity… to make the change”.   In this context, the words “the change” at the end of this section must appropriately be read as “the permissible change”.[48]  References elsewhere in this division to “the request”, in my view, are to be read as “the request made under s 369”, which is a request to make a permissible change.
  6. [56]
    Whether a proposed change is a “permissible change”, within the meaning of s 367, is a “factual criterion, satisfaction of which is necessary to enliven the power of [the responsible entity] to exercise a discretion” whether to approve or refuse the request to make the change.  It is in that sense a “jurisdictional fact”.  That factual criterion is not an objectively ascertainable fact; the determination involves the decision-maker’s evaluation of each of the elements of the definition, some of which are either expressly (s 367(1)(c)) or by necessary implication (s 367(1)(a)) conditioned on the formation of an opinion by the decision-maker.  It is the decision-maker’s evaluation of whether the proposed change is a “permissible change”, involving as that does the formation of an opinion, which is the “jurisdictional fact”.[49]  
  7. [57]
    There is nothing in the language used, in either s 367 or s 374, or elsewhere in this division, which suggests that, in determining whether the definition in s 367 is met, regard must be had to the matters set out in s 374.  Section 374 expressly refers to “assess[ing] the request”, within a separate subdivision headed “assessing and deciding request for change”.  There is no apparent link between that section, and the definition section in s 367.
  8. [58]
    In contrast to this is s 759, which enables the Minister to make guidelines about, among other things, “the matters to be considered in deciding whether or not a change … would result in a substantially different development” (the criterion in s 367(1)(a)).   
  9. [59]
    Further, s 367(2) makes it clear that, for deciding whether a change is a permissible change, in terms of s 367(1)(b) or (d), it is the planning instruments or law in force at the time the request for the change was made that apply.   Section 367(2) may be directly contrasted with s 374(2), which provides that, for s 374(1)(b) (which requires the relevant entity, in assessing the request, to have regard to the matters the responsible entity would have regard to if the request were a development application) the responsible entity must have regard to planning instruments, laws etc applying when the original application was made, although may give the weight they consider appropriate to planning instruments, laws etc applying when the request was made.    Plainly, the focus at each of these two points in the process (determining the jurisdictional fact of whether the change is a permissible change and, if it is, assessing the request for the change) is different.
  10. [60]
    The structure of division 2, into the three subdivisions is also consistent with this construction.   As a preliminary issue, there is the question whether the proposed change is a permissible change – the determination of the jurisdictional fact.  That is governed only by s 367 which defines what a permissible change is.  There then follows the procedure for changing an approval, in terms of application forms, information to be provided, and notices to be given.  Lastly, there is the stage of assessing and deciding the request for change.   Those headings to the subdivisions are part of the Planning Act,[50] and can be taken into consideration in the interpretation of the provisions to which they relate.[51]
  11. [61]
    The following explanatory note, in relation to this part of the Sustainable Planning Bill 2009 also confirms this interpretation:[52]

“A change can only be made to an approval if it is a permissible change.  If a change is a permissible change, then a specific process follows as outlined in subdivisions 2 and 3.”[53]

  1. [62]
    For completeness, I note that in Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council [2015] QPELR 462, in which the process of considering a request to make a permissible change was carried out by the Court, on the merits, the matter was approached consistently with this construction, on the basis, first, of determining whether the proposed change was a permissible change under s 367 (without reference to s 374) (see at [39]-[110]) and, having determined that it was, then assessing the request, under s 374 (at [111]-[115]).

(2)Ongoing relevance of the 2002 court approval

  1. [63]
    Another issue concerns the ongoing relevance (if any) of the 2002 court approval, to the Calder-Potts’ use of their property.
  2. [64]
    Mr Steendyk contends that the 2002 court approval remains in effect, binding the Calder-Potts as the owners of the property at 18 Union Street.  In this regard, he relies on s 245 of the Planning Act, which provides:

“Development approval attaches to land

  1. (1)
     A development approval –
  1. (a)
     attaches to the land the subject of the application to which the approval relates; and
  1. (b)
     binds the owner, the owner’s successors in title and any occupier of the land.
  1. (2)
     To remove any doubt, it is declared that subsection (1) applies even if later development, including reconfiguring a lot, is approved for the land or the land as reconfigured.
  1. [65]
    Mr Steendyk submits that although a development approval may be cancelled (under s 379), that cannot occur after development under the development approval has started (s 380(1)).  He submits that the 2002 court approval has not been cancelled, and remains in effect.
  2. [66]
    He also relies on s 347(a) of the Planning Act, which provides that a condition in a development approval must not “be inconsistent with a condition of an earlier development approval … still in effect for the development”.  He submits that the change approved in the 2014 change approval is inconsistent with conditions 1 and 6 in the 2002 court approval, which is still in effect.[54]  
  3. [67]
    Mr Steendyk contends that the “use” in the context of the premises at 18 Union Street is “house”, and that there is no evidence that there has been an abandonment, since 2001, of the use of that premises as a house.  He argues that the use of the premises as a house has remained ongoing and uninterrupted, and for that reason, the 2002 court approval remains in effect.  
  4. [68]
    Both the Council and the Calder-Potts contend, to the contrary, that the Calder-Potts are entitled to rely upon the 2010 approval, as amended in 2014, to authorise their use of the land for the house, as depicted in the approved drawings, and to abandon reliance upon the 2002 court approval.   The Council and the Calder-Potts submit that relevantly in the context of the planning legislation, under the 2002 court approval the “use” was the use of the premises as a house which looked a certain way.   In 2010, there was a fresh development approval applied for, to change the use, to a house that looked a different way.  
  5. [69]
    The Council submits that although, pursuant to s 245 of the Planning Act, conditions of a development approval run with the land, “they only bind the successors in title to the extent that the approval is relied on to permit lawful use of the land”.[55] 
  6. [70]
    The Calder-Potts submit that “the previous owner’s choice of undertaking an entirely new material change of use application and preliminary approval for building works in 2010, rather than seeking to amend the 2002 Court Approval, represented an intention to abandon the 2002 Court Approval and replace it with the 2010 Approval.  That abandonment crystalised upon the 2010 Approval Works commencing”.[56]
  7. [71]
    To explain that last matter further, the point is not that, upon the granting of the 2010 approval, the 2002 court approval ceased to have effect.  It is accepted that the effect of s 245 is that different development approvals for the same land may co-exist.[57]  However, once the landowner acts under the later approval, in this case the 2010 approval, in the sense of beginning to carry out the development contemplated by that approval, that is an objective means of demonstrating the landowner’s subjective intention to abandon their use rights under the earlier, 2002 court approval.[58]
  8. [72]
    As a matter of general principle, I accept the Council’s and the Calder-Potts’ contention in this regard.  It is supported by authority.  For example in Avel Pty Ltd v Jerdway Pty Ltd [1998] QPELR 62[59] at 65 Quirk DCJ observed[60] that different town planning permits may co-exist in respect of the same land (this reflecting the nature of such a permit, as a permission that certain rights of ownership may be exercised but not a requirement that they must be); but also observed that “there could be circumstances where mutually inconsistent planning permits in respect of the same land exist, and one of these permits is acted upon (with the result that the development authorised by the other is incapable of implementation) with the result that the rights given by the other permit are lost.[61]
  9. [73]
    The decisions in Genamson Holdings Pty Ltd v Caboolture Shire Council (2008) 163 LGERA 386 and Peet Flagstone City Pty Ltd & Anor v Logan City Council & Ors [2015] QPELR 68, relied upon by Mr Steendyk, do not support his argument to the contrary.  Those cases are authority for the proposition that a developer who takes the benefit of a development approval cannot avoid the concomitant burdens of that approval, in the form of conditions which continue to apply, once the approved development has been carried out.[62]   But of course it follows that, if the benefit is not relied on – because the rights conferred by the approval are abandoned – there is no concomitant burden. 
  10. [74]
    Although I accept the Council’s and the Calder-Potts’ contention, as to the concept of abandonment, it seems to me that the proper analysis of the position here is slightly different.  In my view, rather than the 2002 court approval being seen to have been abandoned, once the 2010 approval was obtained and then acted on, it seems to me that the 2002 court approval has simply finished doing the work it was required to do.
  11. [75]
    Once the “works” comprising the development approved by the 2002 court approval had been carried out, the “completion of its task is exhausted”.[63]   It has approved, or authorised,[64] the development which is the subject of it to take place.  The use of the word “maintain” in condition 6(a) of the 2002 court approval does not have the effect of imposing an ongoing, insuperable condition upon the use of the premises as a house looking a certain way.   It could only be enforceable as a condition to maintain the works it refers to, while those works remain in place.  It cannot be interpreted, or enforced, as a condition requiring the works to which it refers to remain in place unchanged for all time.
  12. [76]
    The purpose and effect of s 245 is to make it clear that changes of ownership do not affect the validity of a development approval.[65]   But what attaches to the land, and binds successors in title, are the rights “which inhere in the content of the application to which the approval relates”; being those rights which “relate to the implementation of the development approval itself”; the “right to take advantage” of the development approval.[66]   A subsequent owner is “bound” by the development approval, in the sense of being able to take advantage of it – in this case, to take advantage of the protection it confers on the lawfulness of the development authorised by it – and being bound by such correlative obligations as are part and parcel of the rights created under it.[67]  The only correlative obligation which could be pointed to, once the works authorised by the development approval have been completed, is an obligation to maintain them.  But as I have already said, an obligation to maintain those works is not an obligation to retain them indefinitely.
  13. [77]
    If the owner (or a subsequent owner) wishes to carry out further, additional and/or different “development” to the house – from that which was approved in 2002 - fresh approval for that to occur needs to be sought, and will be assessed appropriately under the legislation / planning scheme provisions which apply at that time.   That is what occurred in this case when later, in 2010, there was further “development” proposed, and the previous owner took appropriate steps to obtain approval for that to lawfully occur.   Likewise, when the Calder-Potts sought to make certain changes to what had been approved in 2010, they made an appropriate application for approval for that to occur, as a “permissible change”.
  14. [78]
    It cannot be correct to say that an approval for development, which has already taken place and been completed, in this case in 2002, continues to bind the owner, and their successors in title, in such a way as to restrict the scope of any subsequent works that may be sought to be carried out to the house.   That is not the purpose or the effect of s 245; nor of the scheme of the Planning Act more generally, which does not seek to restrict or stifle development unduly and unreasonably, but rather to regulate it in a manner consistent with the expressed purpose of the Act, set out in s 3.
  15. [79]
    It remains to deal with the operation of s 347(a) of the Planning Act, which was also relied upon by Mr Steendyk, to support his argument that the Calder-Potts remain bound by the 2002 court approval, and that no subsequent approval, such as the 2014 change approval, could include a condition inconsistent with the 2002 court approval.   He contends that the change approved in 2014, to the north western part of the verandah at the centre of this proceeding, is inconsistent with the condition in the 2002 court approval, requiring fixed privacy screens. 
  16. [80]
    As already noted, s 347(a) provides that a condition of a development approval “must not be inconsistent with a condition of an earlier development approval… still in effect for the development”.  The important words are “still in effect for the development”.  In this context, “the development” is the development the subject of the later approval – here, the 2010 approval.   The 2002 approval was not an approval “still in effect for the development” the subject of the 2010 approval, because the latter was for different “development”.[68]

F.Material before the decision maker

  1. [81]
    The decision notice is in very brief terms.   Where, as here, there is a challenge to the legality of the decision, the Court is not limited to that decision notice, but may have regard to the materials it may reasonably be inferred the Council took into account in reaching its decision.[69]
  2. [82]
    Here, that material includes:
    1. (a)
      the 2010 approval, which was the subject of the change request;
    2. (b)
      the 2014 application to change the approval, including the report from Ken Ryan & Associates; and
    3. (c)
      Ms Spoor’s report and recommendation
  3. [83]
    Mr Steendyk submits that the decision-maker ought also to be found to have imputed knowledge of the history of dealings with the land, including Mr Steendyk’s involvement in that, going back to the 2001 application by the former owner.   His contention is that “the Council” is the responsible entity, and “the Council” as a whole should be taken to have knowledge of all information, held by all parts of the polity, as to the past history of dealings with the relevant land.  
  4. [84]
    Mr Steendyk says that includes the submission he made in 2001, the grounds of his appeal made in 2002, the 2002 court approval, his “informal submission” made in 2010 (which is a reference to the phone call he says he made to a Council officer in 2010), and his complaint to the Council in 2013.[70]
  5. [85]
    The Council points out that, under s 728 of the Planning Act, an assessment manager only has an obligation to keep certain application related documents for a limited period of time (until the end of any time limited for an appeal against a decision on the application).  On this basis, the Council could not be expected to have retained those documents, other than the actual 2002 court approval itself, which it is required to keep under s 729.[71]
  6. [86]
    Mr Steendyk relies upon Dunlop v Woollahra Municipal Council (1975) 2 NSWLR 446 as supporting his contention, that the decision-maker in respect of the 2014 permissible change request is to be imputed with knowledge of all of these pre-2010 matters, and the 2013 complaint by Mr Steendyk, because he is the delegate of “the Council”, and that information is within the corporate knowledge of “the Council”.  
  7. [87]
    But that is not what Dunlop says.  In Dunlop at 485 Wootten J states that “[c]orporations must be held responsible through those who act on their behalf, whether an act is performed by one person or by a number”.   This part of Dunlop is cited in Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 583 as authority for the proposition that “[a] division of function among officers of a corporation responsible for different aspects of the one transaction does not relieve the corporation from responsibility determined by reference to the knowledge possessed by each of them”.[72]
  8. [88]
    Having made that point, Wootten J goes on to observe that, in considering the process by which the Council had reached its decisions in that case, it was appropriate to have regard to reports of council officers “which, in the absence of any indication to the contrary, may reasonably be inferred to have been the basis of council resolutions, and, therefore, supply a basis for attributing to the council the intentions, purposes, motives, beliefs and state of mind revealed therein”.   That was in a context where the purpose, or motive, behind the Council’s resolutions about the building line on particular land, and maximum number of storeys which could be constructed, was the subject of challenge.
  9. [89]
    It is quite a different concept, however, to move from the broad statement of principle referred to in paragraph [87] above, to a conclusion that, when a delegate of a polity such as the Council is making an administrative decision, it is appropriate to impute to them knowledge of a range of matters, which there is otherwise no basis to infer they are aware of.  That is “a strenuous step too far”.[73]   Dunlop makes it clear, consistent with established principles concerning the scope of judicial review of administrative action,[74] that the relevant enquiry concerns the material that was before the decision-maker, and therefore which may inform the basis on which the decision was made (see at 484F and 485C).[75]  Dunlop simply confirms that, in considering a challenge to such a decision, one is not restricted to the record of the decision (or resolution) itself, but can be informed by the other documents, reports etcetera, that were before the decision-maker at the time the decision was made.
  10. [90]
    I can see no basis to infer from the evidence before me that any other material, apart from that identified in paragraph [82] above, was before the decision maker, including the history of Mr Steendyk’s involvement in dealings with the 18 Union Street land before the 2010 approval, or the 2013 complaint from Mr Steendyk. 
  11. [91]
    Counsel for Mr Steendyk was critical of the Council for not calling the decision-maker (or for that matter Ms Spoor) to give evidence.  He submitted a Jones v Dunkel[76] inference ought to be drawn, that evidence from either of these people would not have assisted the Council’s case.  But the Council’s case, relevantly, was that the material before the decision-maker was what it appears to be, on the face of the decision.   It was not seeking to add anything to that.[77]  Further, it is Mr Steendyk who bears the onus on this application.[78]  It was open to Mr Steendyk to have applied for a statement of reasons.[79]  He did not do so.  It is not a matter of course that the decision-maker would be required to give evidence on the hearing of an application such as this, to explain his decision (nor, for that matter, an officer who prepared a report for the decision-maker).  The challenge here is to the legality of the decision – which must be established by reference to the decision itself, on the basis of the material that was before the decision-maker.  In so far as Mr Steendyk’s case was that additional information was to be imputed to the decision-maker that is not an argument that is in any way assisted by the absence of evidence from the decision-maker.
  12. [92]
    In any event, if there is other material, which an aggrieved person contends ought to have been taken into account by the decision-maker, the appropriate way to address that, in an administrative review context, is on the basis of the relevant considerations ground;[80] not to somehow impute to the decision-maker knowledge of those things, and then on that basis challenge the reasonableness of their decision.
  13. [93]
    I turn now to deal with each of the grounds of jurisdictional error contended for by Mr Steendyk.

G.Whether Council lacked jurisdiction – because the Court is the responsible entity

  1. [94]
    It follows from paragraph [28], and the analysis at paragraphs [63]-[80] above, that there is no substance in this complaint.  The request made by the Calder-Potts in 2014 was to make permissible changes to the 2010 approval; not the 2002 court approval.   The Council was the appropriate responsible entity, under s 369(1)(e) of the Planning Act.

H.Jurisdictional error – tainting the decision made by the Council

  1. [95]
    The next three grounds relied upon by Mr Steendyk attack the legality of the decision made, that the proposed change was a “permissible change”, in particular in terms of the decision-maker’s formation of the opinion, for the purposes of s 367(1)(c) – that the proposed change(s) would not, because of the change(s), be likely to cause a person [relevantly, Mr Steendyk] to make a properly made submission objecting to the proposed change(s), if the circumstances allowed.
  2. [96]
    In a case such as this, where the “jurisdictional fact” is the opinion or belief held by the decision maker about a particular matter, as opposed to the existence of the particular matter itself, the basis on which such a decision may be judicially reviewed was explained by Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119:

“In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously.  Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account.  Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it.  However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.”[81]

(1)Legal unreasonableness

  1. [97]
    In the manner in which the argument for Mr Steendyk was advanced before this Court, the ground of legal unreasonableness was pressed as the primary ground relied upon, notwithstanding the order in which the grounds are pleaded in the originating application.
  2. [98]
    As I have already noted, Mr Steendyk’s argument is that the Council’s delegate, who made the decision, is to be imputed with knowledge of the past history of dealings in relation to 18 Union Street, and Mr Steendyk’s role in relation to that.  On that basis, he argues that, “there is no ‘evident and intelligible justification’ for Council to approve the permissible change application, in circumstances where it had actual knowledge that [Mr Steendyk] held firm views as to the importance of fixed screening being affixed to the Terrace Structure, and that he was ready to take any legal steps necessary to prosecute and protect such rights”.[82]   The argument therefore is that, in circumstances where “the Council” had, or ought be taken to have had, actual knowledge of Mr Steendyk’s views, it was legally unreasonable for the decision-maker to form the opinion that he did, as to s 367(1)(c).
  3. [99]
    In terms of legal unreasonableness in this context, I rely on the principles summarised in Ferreyra v Brisbane City Council [2016] QPELR 334 at [85]-[91], without setting those out in full here.
  4. [100]
    For the reasons set out in paragraphs [81]-[91]  above, this ground must fail, because it has not been established that the decision-maker knew about Mr Steendyk’s “firm views” in relation to fixed screening on the Calder-Potts’ verandah.  That is not apparent from any of the material before the decision-maker.   That being the only basis on which this ground was argued for Mr Steendyk, it is unnecessary to say any more about it.

(2)Failing to take into account relevant considerations

  1. [101]
    As Weinberg J observed in Australian Retailers Association & Ors v Reserve Bank of Australia (2005) 148 FCR 446 at [522]:

“The authorities make it clear that failure to take into account a relevant consideration can only be made out as a ground of review if the decision-maker fails to take into account a consideration that he or she is bound to take into account in making that decision. Whether a decision-maker is bound to take a particular matter into account is determined by the construction of the statute conferring the discretion.  If the relevant factors are not expressly identified in the statute, they must be determined by implication from its subject matter, scope and purpose …”[83]

  1. [102]
    Mr Steendyk advances this ground as an alternative to his legal unreasonableness ground.
  2. [103]
    Mr Steendyk’s argument on this ground relies upon s 374(1)(b) and s 313(3)(b) / s 314(3)(b) of the Planning Act – to contend that, in determining whether the change is a permissible change, the decision-maker was required to have regard to the 2001 Council approval and the 2002 court approval.  He submits that if the Council had considered this material, it would have been apparent that Mr Steendyk commenced the appeal against the 2001 Council approval, and that “one of the only differences” between the 2001 Council approval and the 2002 court approval “was the requirement for fixed privacy screens to the exterior of all balconies and verandahs of a mandated type, which would include the Terrace Structure, the subject of the permissible change application”.[84]
  3. [104]
    I will mention (but otherwise put to one side, because of the view I have formed about this ground on other bases), that this statement is factually inaccurate when one looks at the 2001 Council approval and the 2002 court approval.  What is consistent between both approvals is condition 6(a) (the requirement for “fixed privacy screens up to 1.8 metres above floor level to the sides of all balcony(s)/verandah(s)”).[85]   What is added, in the 2002 court approval, is condition 5(b) (requiring the installation of “fixed privacy screens generally as illustrated on Plan number SK815535-A in locations as per the approved plans”), which, as noted at paragraph [10] above, applied to three walls on the western side of the verandah, not the north western side that is at the centre of the present dispute.
  4. [105]
    Mr Steendyk also contends that, as well as the matters prescribed in s 374, the Council’s delegate ought to have had regard to Mr Steendyk’s submission in 2001, his appeal in 2002, his phone call to the council officer in 2010 and his complaint in 2013 “for the reasons described in Dunlop”.[86]  
  5. [106]
    Mr Steendyk submits that material “could only have led to a reasonable person forming a view that a person, namely [Mr Steendyk] would object to the permissible change application, if given the opportunity”.[87]
  6. [107]
    For the reasons articulated at paragraphs [51]-[61] and also [81]-[91] above, this ground must fail also.   The decision-maker was not required, in determining whether the change(s) the Calder-Potts sought to make to the 2010 approval were permissible change(s), to have regard to the matters set out in s 374.  I am unable to discern any other basis, expressed or by necessary implication, on which to conclude that the decision-maker was otherwise required to have regard to any of the pre-2010 material, or the 2013 complaint.  
  7. [108]
    Save for one exception, the Planning Act does not expressly identify any matters the responsible entity is to take into consideration, in determining whether the definition of “permissible change” is or is not met in any particular case.  The exception is that s 759(1)(c) of the Planning Act does expressly provide for the making of a Ministerial guideline about the matters to be considered in deciding whether or not a change to a development approval would result in a substantially different development (ie the criterion in s 367(1)(a)).    So there is no express basis to find the Council’s delegate was required to consider the pre-2010 material or the 2013 complaint. 
  8. [109]
    Nor, in my view, is there any basis on which to imply, from the subject matter, scope and purpose of the Planning Act, such an obligation on the part of the decision-maker.  As the Council noted, in so far as the pre-2010 material, other than the 2002 court approval itself, is concerned, the Council is not even obliged to keep that material.  Further, the decision-maker’s concern is to determine whether a change(s) proposed to a particular development approval is a permissible change.  It is meant to be a convenient, flexible and efficient means of making relatively minor changes, without the need to become involved in the more time consuming and complex process of making an application for a new development approval.[88]   In that context, there is no justification for requiring that the decision-maker trawl through the history of land use, and development approvals for the land, or interrogate the records held by the Council in its other departments or capacities, in determining whether a proposed change to a particular development approval is or is not a “permissible change”.   Such an approach would cause undesirable uncertainty, issues of procedural fairness and delay, inconsistently with the objective, in s 3(a) of the Planning Act, of ensuring that the process by which development takes place is accountable, effective and efficient.
  9. [110]
    For completeness, I note that even in the context of assessing the request for the change – after having determined the change was a permissible change – in my view, it was not necessary for the Council to assess the change request against any development approval ever granted in respect of the land.  Sections 374(1) and 313(2)/314(2) are expressly qualified by the phrases “to the extent relevant” and “to the extent the matter or thing is relevant to the development”, respectively.   The 2014 application was an application to make a change to the 2010 approval only.   The Calder-Potts were not seeking to rely on the 2002 court approval at all.  In those circumstances, that earlier approval was not relevant to the change request.

(3)Taking into account irrelevant considerations

  1. [111]
    For a consideration to be irrelevant in this context, the statute must expressly or impliedly prohibit consideration of it.[89]
  2. [112]
    Mr Steendyk’s argument on this ground is that one of the matters identified by Ms Spoor, in her report and recommendation to the decision-maker, as to why he could be satisfied s 367(1)(c) was met here (namely, that if a new application was made, it would be code assessable, in respect of which there would be no submission rights) was irrelevant.
  3. [113]
    I am unable to discern any basis on which it could be concluded that having regard to the level of assessment that would apply, if a completely new application for development approval was made, as opposed to seeking to make a change to an existing one, was something expressly or impliedly prohibited by the Planning Act.  On the contrary, it appears to me to be a relevant and reasonable matter to have regard to, in the context of s 367(1)(c) – particularly where, as here, the previous approval was impact assessable, but no properly made submissions were received in relation to it, and a fresh application would now, under the new planning scheme, be code assessable.
  4. [114]
    Mr Steendyk also seemed to argue that the other matter referred to by Ms Spoor (that the opinion could be formed that it was not likely a person would make a submission objecting to the proposed change, because the change would not involve any new impacts) was wrong as a matter of law.  Although his criticism in this respect seemed to be that one could not reach that conclusion only because the change involved no new impacts, as opposed to suggesting it was an irrelevant consideration.[90]  Again, this seems a relevant, and reasonable matter to have regard to, when what is required to be considered is whether, because of the change, a person is likely to make a submission – plainly, one instance in which that might occur, is where there are new impacts.
  5. [115]
    This ground must fail also.

(4)Development offence

  1. [116]
    The third declaration sought by Mr Steendyk is that the removal of privacy screens, the subject of conditions in the 2002 court approval, constitutes a development offence under s 580 of the Planning Act.
  2. [117]
    It follows from conclusions reached above that there is no basis for any such declaration.   I do however endorse the observations made by Wilson SC DCJ (as he then was) in Mac Services Group Ltd v Belyando Shire Council [2008] QPELR 503 at 508, questioning whether “such draconian relief”, as a declaration in terms that a particular act constitutes a development offence, is available under s 456, since that is something that would ordinarily require the application of “quite a high standard of proof”, more stringent than that arising under s 456. 

I.Conclusion on the substantive issues

  1. [118]
    Since none of the grounds relied upon by Mr Steendyk for challenging the legality of the Council’s 2014 permissible change decision have been made out, he is not entitled to the declaratory relief he seeks.  His application will be dismissed.
  2. [119]
    It is appropriate, however, in the context of this case (given its procedural history, which I will refer to next) that I also address the parties’ arguments, in relation to discretionary considerations, on the basis that even if I had formed a different view about Mr Steendyk’s substantive application, it would not automatically follow that relief would be granted.  Under s 456(1) of the Planning Act there remains a discretion whether or not to do so.  

J.Procedural history

  1. [120]
    On 17 March 2016 Mr Steendyk filed his originating application, seeking the declarations referred to above.  
  2. [121]
    Evidence and submissions were filed, and the application came on for hearing before Judge Searles on 1 July 2016.  On that day, his Honour expressed concern about whether the matter could be dealt with in the one day allocated for the hearing, noting that if it could not, he would not have capacity to allocate a further date until some months later. In the context of what became essentially a directions hearing, there was discussion about that, and some other matters, which included a request from counsel for the Calder-Potts and the Council that Mr Steendyk clarify whether he proposed to amend his application, to seek consequential orders.  Upon it being confirmed that he did not intend to do so, it was contended by counsel for the Calder-Potts that the utility of the entire proceeding was called into question, and an oral application for summary dismissal of the application was made on that basis.  The end result was that the substantive hearing did not proceed, but directions were made for the filing of an application by the Calder-Potts and the exchange of submissions.   
  3. [122]
    The Calder-Potts’ application was filed, on 25 July 2016, seeking summary judgment or alternatively “a determination of preliminary issues that effectively dispose of the” originating application.
  4. [123]
    That application came on for hearing before me on 8 August 2016, with the focus of the hearing being on the discretionary considerations which the Calder-Potts and the Council submitted overwhelmingly favoured the refusal of Mr Steendyk’s application (even if, which was denied, he should otherwise be able to make out his claim for relief). 
  5. [124]
    After hearing submissions from the parties, and considering the matter over the next day (including reading the transcript of the proceeding before Judge Searles on 1 July), I became concerned that there was a potential difficulty with the exercise the Court was being asked to carry out, in the sense that without considering the substantive issues, the subject of Mr Steendyk’s originating application, the appropriate scope of the discretion conferred by s 456 of the Planning Act was artificially constrained.  I was also concerned about the costs consequences to the parties, being private citizens, and a local government. 
  6. [125]
    Given that all the work had already been done, for the hearing of the substantive issues (save for any further oral argument the parties wished to make), and in the interests of dealing with the matter in a fulsome way, on 9 August 2016 I asked the parties if they would agree to having a further half day hearing, at which they could make any further oral submissions on the substantive matters they wished to, following which I could deal with all the matters in dispute.   Consistently with rule 4 of the Planning and Environment Court Rules 2010 all parties cooperated with this approach, and that is what occurred, with the further hearing taking place on 18 August 2016, commencing with a site inspection early on that day.
  7. [126]
    Although there may be exceptional cases, I do not regard it as a generally desirable practice, in a proceeding of this kind, to separate out the substantive issues, from discretionary considerations.   The discretion is a legitimate and integral part of the overall scheme of the planning legislation,[91] but only arises where a right to relief has otherwise been established.   The factual and legal matters that support a finding that a right to relief has otherwise been established will inevitably be relevant to the exercise of the discretion (in addition to other matters as well).   The exercise of what is acknowledged to be a wide and unfettered discretion is artificially constrained, unless the matters are addressed holistically.
  8. [127]
    I was referred to Stevenson Group Investments Pty Ltd v Nunn [2013] QPELR 1 as an authority supporting the approach of dealing in a preliminary or summary way with the discretionary considerations.  But it is apparent that, in that case, the summary judgment application which was made addressed both the validity of the particular development permit and discretionary considerations (not discretionary considerations alone).[92] 

K.Discretionary considerations

  1. [128]
    Had I found that there was a basis to vitiate the opinion formed by the decision-maker as to s 367(1)(c) (which is the only aspect of s 367 challenged by Mr Steendyk), it may have been appropriate to make declaration number 2 (that the permissible change decision is of no force or effect).   I am not sure that it would be appropriate to declare that the change(s) sought are not permissible changes (declaration number 1), because that would purport to reflect a conclusion on the merits, rather than a conclusion as to the legality of the decision.   But it is unnecessary to express a concluded view about that, in the circumstances.  I do not proceed on any alternative basis, in so far as declaration number 3 is concerned.  Even if I had formed a favourable view of Mr Steendyk’s challenges to the legality of the Council’s permissible change decision, there would be no basis to make the third declaration, for the reasons articulated above (dealing with the continuing relevance of the 2002 court approval).
  2. [129]
    Certain “guidelines” for the exercise of a discretion such as that conferred by s 456(1) were formulated by Kirby P (as his Honour then was) in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341. As his Honour recognised in that case, the discretion is a wide one, not fettered by the legislation.  Whilst it is undesirable to try to catalogue the circumstances which will, or will not enliven the discretion, by reference to previous decisions, it is nevertheless instructive and helpful in achieving generally consistent application of the law, to have regard to factors which have influenced the exercise of the discretion in other cases.[93]
  3. [130]
    Some of the factors referred to by Kirby P include: 
    1. (a)
      that the proceedings are not concerned with enforcement of private rights, but with the enforcement of a public duty;
    2. (b)
      that there is a legislative purpose of upholding in the normal case the integrated and coordinated nature of planning law, which secures equal justice;
    3. (c)
      that normally, those concerned in development will comply with the terms of the legislation, because if exceptions become a frequent occurrence, the orderly enforcement of the legislation could be undermined;
    4. (d)
      that the position of the council, as “the proper guardians of public rights” may be relevant;
    5. (e)
      whether the relief sought is in respect of “static” development which, having occurred (ie been built) may only be remedied at great cost and inconvenience, as compared with continuing conduct which may more easily be modified to bring it into compliance with the law;
    6. (f)
      whether the “breach” is a purely technical matter; or whether rather than having an adverse effect, it actually has a beneficial effect;
    7. (g)
      whether there has been any delay in seeking the relief;
    8. (h)
      whether it is appropriate for the court to “soften”, according to the justice of particular circumstances, the application of rules which, though right in the general, may produce an unjust result in the particular case.
  4. [131]
    Some other factors are referred to in Bon Accord Pty Ltd v Brisbane City Council [2010] QPELR 23, including:
    1. (a)
      whether the developer / owner has acted in good faith, “in reliance upon specific approvals, for which it had applied with the assistance of appropriately qualified consultants and which were granted by the appropriate decision-makers, whose good faith has not been questioned” (at [191]);
    2. (b)
      or whether the developer/owner has acted knowingly or recklessly, either “jumping the gun” by proceeding without obtaining development approval, when one was clearly required, or completing building work in order to achieve a fait accompli (at [190]);
    3. (c)
      whether third parties would be affected by the grant of the relief sought (at [198]);
    4. (d)
      whether there is utility to the declarations sought – or whether the resulting uncertainty would simply “cast an unnecessary pall on the development”, and provoke other litigation in relation to the development (at [208]).
  5. [132]
    The discretionary factors that I would regard as weighing heavily against the grant of the relief sought by Mr Steendyk in this matter are the following.
    1. (a)
      Privacy is undoubtedly an important issue for people, in the areas where they live.  But the importance of providing privacy must be balanced against the level of amenity that can be reasonably expected within a particular context.  As Ms Morrissy observes:

“Spring Hill, and in particular, the subject site’s [that is, the Calder-Potts’ property] surrounding locality, is an intense, inner-city urban environment where buildings are closely set to the street and to each other; and where development is commonly accommodated on small lots.  The level of amenity that can reasonably be expected in such an environment will therefore be much different to what can be expected in outer suburban areas.  Some overlooking in an intense urban environment, such as Spring Hill, would be, in my opinion, reasonably expected.”[94]

  1. (b)
    This balancing exercise is aptly captured in Mrs Calder-Potts’ evidence that:

“Whilst I am not greatly enthusiastic about living in such close proximity to neighbours, the area has a good feeling and mostly friendly neighbours who respect mutual privacy but without seeking seclusion.”[95]

  1. (c)
    The works complained of by Mr Steendyk have been completed by the Calder-Potts.  They are part of a broader range of works, authorised by a combination of the 2010 approval, the 2014 change approval and the building development approval, carried out by the Calder-Potts at considerable expense.[96]  
  2. (d)
    Those works have been carried out by the Calder-Potts, in good faith, in reasonable reliance on the validity of each of the approvals just referred to.   In so far as the actual building work is concerned, that is authorised by the building development approval which is not the subject of any challenge in this proceeding.  
  3. (e)
    The cost to the Calder-Potts of “reversing” the alterations made to the north western part of the verandah about which Mr Steendyk complains is not inconsiderable (being approximately $23,000[97]).  Given that we are here concerned with private citizens, it may be accepted that that is a considerable impost on the Calder-Potts, as Mrs Calder-Potts deposes.
  4. (f)
    The alterations which have been made have caused no concern to the neighbours who reside more closely to the Calder-Potts’ home, being the occupants of 19-19A Isaac Street (the house next door to Mr Steendyk).[98]
  5. (g)
    Any impact that the current form of the Calder-Potts’ home, in particular the north western part of the verandah, could be said to have on the privacy of Mr Steendyk’s land and home, is negligible.    In this regard, as noted above, in terms of what can be seen from the Calder-Potts’ home, I accept Mrs Calder-Potts’ evidence, and reject Mr Steendyk’s.  It is appropriate in this regard to keep in mind the nature of the locality, as described in (a) above; the reasonableness of what can be expected in terms of privacy; and the need to balance expectations of privacy, with the reality of the locality.
  6. (h)
    It is also appropriate that there be some “give and take”.  Mr Steendyk has chosen to design alterations to his house, on a 202m2 block, in Spring Hill, which has floor to ceiling glass on the lower and upper floors, only “sheer translucent curtains” on the upper floor, and no screening at all on the lower floor.   That is a personal decision for Mr Steendyk.  But it is unreasonable, in those circumstances, and having made that choice, for Mr Steendyk to seek to impose rigid constraints, on a neighbouring property such as the Calder-Potts’, which require them to have fixed privacy screens of a particular kind on their verandahs, in order to preserve privacy for Mr Steendyk.   There is no balance in what Mr Steendyk seeks to achieve.
  7. (i)
    Although I do not consider that the making of a declaration that the 2014 change approval is void would lack any utility, such that it could not be made (if a basis for it had otherwise been established), I do accept that in the absence of any consequential orders being sought, the Calder-Potts would be left in a state of unreasonable uncertainty, as to:
    1. (i)
      the status of the overall works carried out by them to their home, only some of which are the subject of Mr Steendyk’s complaint, and all of which are authorised by a valid and unchallenged building development approval;
    1. (ii)
      what they would be required to do, in order to regularise the works carried out to their home, in terms of further alterations to the north western part of the verandah – in respect of which, Mr Steendyk declined to “nail his colours to the mast” in terms of what he says the Calder-Potts would be required to do – or further applications for development approval; and
    1. (iii)
      the risk of future litigation – that there is such a risk was made plain by counsel for Mr Steendyk, who insisted there was no requirement for Mr Steendyk to articulate what the Calder-Potts would be required to do, in order to comply with the 2010 approval (if the 2014 change approval were declared invalid), but said if he was not satisfied with what they decided to do, he would bring further proceedings.  That is plainly an unsatisfactory position.[99]
  8. (j)
    That the Calder-Potts could make a fresh application, for development approval (abandoning reliance on the 2010 approval) for the works which have been carried out to their home, which would be code assessable under City Plan 2014, and in respect of which Mr Steendyk would have no right to make any submission, or to challenge the merits of any decision.  
  1. [133]
    A combination of those factors would have lead me to conclude that, even if I had found some basis to vitiate the opinion formed by the decision-maker, as to s 367(1)(c), and therefore the 2014 permissible change decision, I would have declined to grant the relief sought by Mr Steendyk for discretionary reasons.
  2. [134]
    In the context of the summary judgment application, the Calder-Potts, supported by the Council, submitted that, in circumstances where no consequential orders were sought by Mr Steendyk, the declarations sought by him lacked utility.  In my view, as an absolute statement, that is not correct.  That no consequential orders are sought is one of the discretionary considerations, as I have mentioned above; but that is a different matter to saying that, on this basis alone, the declarations sought lack utility and the proceeding ought to be dismissed.
  3. [135]
    Landel Pty Ltd and Landrex Pty Ltd v Redland Shire Council [2001] QPELR 480 is an example of a case where the Court of Appeal did conclude that the relief sought was “entirely futile”, in the absence of a further, consequential order.  There, what was sought was a declaration “that the subject application for a development approval is an application which requires impact assessment including public notification pursuant to the provisions of the Integrated Planning Act”.   The subject approval was one previously granted by the Council, and then following an appeal to this Court, approved subject to conditions.  The application had not been subject of impact assessment, or public notification.  But in the proceedings leading to the Court of Appeal’s decision, no order was sought that the approval should, in the circumstances, be cancelled.  In the absence of any such order being sought, the Court held that the declaration which was sought was futile, because the proposed declaration “would not spell the invalidity of the development approval or the conditions attaching to it.  It would merely cast a cloud over the approval”.
  4. [136]
    That is to be contrasted with the case here, where declaration number 2 does target the 2014 preliminary approval decision itself, seeking that it be declared of no force or effect.  The fact that no consequential orders are sought, in terms of what the Calder-Potts would be required to do as a consequence, does not render that declaration of no utility.[100] 

L.Orders

  1. [137]
    For the foregoing reasons, the order will be that the originating application filed on 17 March 2016 is dismissed.    There is no need for any orders to be made in relation to the Calder-Potts’ summary judgment application filed on 25 July 2016.
  2. [138]
    I will hear the parties as to costs.

Footnotes

[1]  See the plan showing the location of the two properties, in the affidavit of Steendyk, filed 19 April 2016 (Steendyk), at exhibits p 3; and the aerial photograph annexed to the affidavit of Mrs Calder-Potts, filed 6 May 2016 (Calder-Potts), at exhibits p 1.  

[2]  Underlining added.

[3]  Statement of evidence of Ms Morrissy dated 18 May 2016 (annexed to the affidavit of Ms Parker, filed 19 May 2016) (Morrissy) at [2.2.3].

[4]  Calder-Potts at [5].

[5]  Steendyk, at exhibits pp 37-38.

[6]  See Steendyk, exhibits commencing at p 74; the plans forming part of the 2002 court approval are in attachment C2 to Morrissy, commencing at p 41.

[7]  Steendyk, at exhibits p 78.

[8]  Depicted in a document, bearing the description “plan no. SK781535-A”, which contains a photograph of timber “plantation” shutters (Steendyk, at exhibits p 85), a clearer version of which appears at Steendyk, at exhibits p 63.

[9]  See the plan, in Morrissy at p 41, which on the left hand side shows a cloud with the words “fixed louvred timber screen to 1.8m high”, accompanied by arrows pointing to the three walls where these fixed screens are proposed to be installed.

[10]  See the plan at Morrissy, p 42.

[11]  Steendyk, at [49].

[12]  Steendyk, at [51]; see also the photographs at Steendyk, at exhibits pp 213-214.

[13]  See the 2010 plans, at Morrissy at p 45.

[14]  Steendyk, at [62].

[15]  Morrissy at p 45.

[16]  Steendyk, at [63]-[67].

[17]  Steendyk, exhibits commencing at p 195.

[18]  See condition 8 (Steendyk, at exhibits p 202); see also plan SD05 B, in Morrissy at p 47.

[19]  Morrissy, at p 45.

[20]  Morrissy, at p 46

[21]  Steendyk at [70]; see also Calder-Potts’ submissions dated 30 June 2016, filed 8 August 2016 at [9].

[22]  Calder-Potts at [7]; affidavit of Mr Calder-Potts, filed 6 May 2016, at [3] (agreeing with the contents of Mrs Calder-Potts’ affidavit).

[23]  Calder-Potts, at [8].   The balustrade and lattice described is shown in the photograph annexed at p 7 of Calder-Potts.

[24]  According to Mr Steendyk’s evidence, in Steendyk at [71]-[76].

[25]  Photographs of this were taken by Mr Steendyk, in March 2013 (see Steendyk at [72], and exhibits at pp 211-212.

[26]  See exhibit 3 (Council’s “complaint details report”); Steendyk at [78].

[27]  Calder-Potts, at [16]; see also the further affidavit of Mrs Calder-Potts, filed 18 August 2016, in which she explains that the 2014 application was made, not in direct response to Mr Steendyk’s complaint, but to give effect to their original intention to make some renovations to their residence, after living in it for a while, to give themselves time to consider what they wanted to do, and to obtain the funds to do it.

[28]  Steendyk, exhibits at pp 252 and following.

[29]  Depicted in the photographs annexed to Calder-Potts, at exhibits pp 5 and 6; see also the photographs, in figure 3, p 8 of Morrissy.

[30]  Calder-Potts at [15], [17], [22]-[23]; see also the photograph at exhibits p 5.

[31]  See the plans forming part of the 2014 change approval at Morrissy, pp 50-52.

[32]  Exhibit 2.

[33]  Steendyk, at [85].

[34]  Steendyk, at [84].

[35]  Calder-Potts at [10] and [11], and the photographs annexed at pp 2-5.

[36]  Application form, at Steendyk, exhibits, p 219.  This is the reference number for the 2010 approval (Steendyk, at exhibits p 195).  See also the accompanying letter from Ken Ryan & Associates, town planning consultants, dated 29 September 2014 (Steendyk, at exhibits p 239 and following).

[37]  Steendyk, at exhibits pp 240-242.  Underlining added.

[38]  Steendyk, at exhibits pp 245-250.

[39]  Steendyk, at exhibits p 251.

[40]  See [57]-[60] of the originating application.

[41]  See [61]-[63] of the originating application.

[42]  See [64] of the originating application.

[43]  See [65] of the originating application.

[44]Eschenko v Cummins [2000] QPELR 386 at [20]; Westfield Management Ltd v Brisbane City Council & Anor [2003] QPELR 520 at [55]-[57]; Di Marco v Brisbane City Council & Ors [2006] QPELR 731 at [14]; Wheldon & Anor v Logan City Council & Anor [2015] QPELR 640 at [18].

[45]  Underlining added.

[46]  Underlining added.

[47]  Underlining added.

[48]  Pearce and Geddes, Statutory Interpretation in Australia (Lexis Nexis, 8th ed), at [4.24].

[49]  See the discussion of this issue in Ferreyra v Brisbane City Council [2016] QPELR 334 at [70]-[72].   See more generally Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 (Malaysian Declaration case) at [57] per French CJ.

[50]  Section 14 of the Acts Interpretation Act 1954.

[51]  See Pearce and Geddes, at [4.52] and [4.53], in particular the reference there to Silk Bros Pty Ltd v State Electricity Commission (Vic) (1943) 67 CLR 1 at 16 per Latham CJ and also to Ragless v Prospect District Council [1922] SASR 299 at 311 per Murray CJ.

[52]  Section 14B(1)(c) of the Acts Interpretation Act 1954.

[53]  Underlining added.

[54]  Condition 1 required the owner to “carry out the approved development generally in accordance with the approved drawing(s) and/or document(s)”.  Condition 6(a) required the owner to construct and maintain the dwelling house to include “fixed privacy screens up to 1.8 metres above floor level to the sides of all balcony(s)/verandah(s)”:  Steendyk at pp 77 and 78.

[55]  Council’s submissions, filed 1 July 2016, at [43].

[56]  Calder-Potts’ submissions, dated 30 June 2016 (filed 8 August 2016) at [13(a)].

[57]Gladstone Regional Council v Homes R Us (Australia) Pty Ltd [2015] QCA 175 at [9] per Fraser JA.

[58]  See, for example, Benter Pty Ltd v Brisbane City Council [2006] QPELR 451 at [4]-[8] per Rackemann DCJ as to the concept of abandonment.

[59]  Which was cited by Fraser JA in Gladstone Regional Council v Homes R Us at [9], footnote 8.

[60]  By reference to Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment (1985) 1 AC 132 at 144.

[61]  See also Matijesevic v Logan City Council [1984] 1 Qd R 599 at 603.30 and 604.10 per Connolly J (that the effect of planning approval, once acted upon at least, on a prior lawful but different use may well be to extinguish the prior lawful use – where the same area of land is concerned).

[62]  See Genamson at [22] and [26] per Keane JA (as his Honour then was) and Peet Holdings at [27], [28] and [31] per Gotterson JA.

[63]  See, for example, Rofail v Wells [2011] QPEC 125 at [24]-[25] per Dorney QC DCJ.

[64]  See s 241 (preliminary approval) and s 243 (development permit) of the Planning Act.

[65]  See also the Explanatory Notes to s 245 in the Sustainable Planning Bill 2009, at p 127.

[66]Sunshine Coast Regional Council v Sugarbag Road Pty Ltd [2012] QPELR 139 at [24], [26].

[67]Sugarbag, again, at [26] and [29].

[68]  See Liquorland (Australia) Pty Ltd v Gold Coast City Council (2002) 121 LGERA 197 at [15]-[19].

[69]Westfield Management Ltd v Brisbane City Council [2003] QPELR 520 at [60]-[62], referring to Dunlop v Woollahra Municipal Council (1975) 2 NSWLR 446.

[70]  See Mr Steendyk’s submissions, filed 1 July 2016, at [37].

[71]  Although, notwithstanding the Council is not obliged to keep such material, there was evidence before the Court to indicate that the Council had disclosed, in this proceeding, a piece of correspondence relating to the resolution of the 2002 appeal, so presumably that had been kept in some way (exhibit 4).  There was also put in evidence a record from Council’s complaints database, of the complaint made by Mr Steendyk in July 2013 (exhibit 3).

[72]  Underlining added.

[73]  Calder-Potts’ submissions, dated 30 June 2016, at [25].

[74]  See, for example, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 341 per Mason CJ.

[75]  See also Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 391; Australian Retailers Association & Ors v Reserve Bank of Australia (2005) 148 FCR 446 at [442].

[76]  (1959) 101 CLR 298.  See, generally, Commissioner of the Australian Federal Police v Hart & Ors [2016] QCA 215 at [774]-[775] per Morrison JA.

[77]  See, by analogy, Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [92] per Gleeson CJ and Gummow J, also at [143] per Kirby J and [316]-[317] per Callinan J.

[78]Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 212-213.

[79]  Section 757(2) of the Planning Act.

[80]  As was the case in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, for example, at 31 per Gibbs CJ.

[81]  See also Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130]-[137] per Gummow J.

[82]  Applicant’s submissions, filed 1 July 2016, at [51].

[83]  Referring, inter alia, to Peko-Wallsend at 39-40.  Emphasis added.

[84]  Mr Steendyk’s submissions, filed 1 July 2016, at [55].

[85]  See the 2001 Council approval at Steendyk, exhibits p 46; and the 2002 Court approval at Steendyk, exhibits p 78.

[86]  Mr Steendyk’s submissions, filed 1 July 2016, at [58].

[87]  Mr Steendyk’s submissions, filed 1 July 2016, at [56].

[88]  See Explanatory Notes to the Sustainable Planning Bill 2009 at p 194; see also Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council [2015] QPELR 462 at [52].

[89]Peko-Wallsend at 40; Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 102 FCR 517 at [137].

[90]  Mr Steendyk’s submissions, filed 1 July 2016, at [61].

[91]Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at [342].

[92]  See, for example, Stevenson (a decision of the Court of Appeal) at [9]-[15], [30], [39] and [47]-[56] (as to the validity and efficacy of the development permit); and also the decision at first instance:  Stevenson Group Investments Pty Ltd v Nunn (2011) 190 LGERA 351 at [19].

[93]  See also Bon Accord Pty Ltd v Brisbane City Council [2010] QPELR 23 at [174] per Rackemann DCJ.

[94]  Morrissy at [6.0.8] and [6.0.9].

[95]  Calder-Potts, at [6].  Emphasis added.

[96]  Calder-Potts at [28].

[97]  Calder-Potts at [27].

[98]  Affidavit of Emily Barry filed 6 May 2016 and affidavit of Brooke Hensman filed 6 May 2016.

[99]  See, for example, Meagher, Gummow and Lehane’s, Equity Doctrines and Remedies (LexisNexis, 5th ed, 2015) at [19-305], as to the relevance, as a discretionary bar to declaratory relief, albeit not on its own, of the fact that the declaration might not finally conclude the dispute between the parties.

[100]  See also Mac Services Group Ltd v Belyando Shire Council [2008] QPELR 503 at [29] per Wilson SC DCJ, referring to Clayton v Miriam Vale Shire Council [2000] QPELR 320 at 324 per McLauchlan QC DCJ, where it was held that a declaration could be made under the equivalent IPA provision, even if no consequential relief is sought.

Close

Editorial Notes

  • Published Case Name:

    Steendyk v Brisbane City Council & Ors

  • Shortened Case Name:

    Steendyk v Brisbane City Council

  • MNC:

    [2016] QPEC 47

  • Court:

    QPEC

  • Judge(s):

    Bowskill DCJ

  • Date:

    16 Sep 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
1 citation
Jump To
Cite 1 - (1990) 170 CLR 321
Australian Retailer Association v Reserve Bank of Australia (2005) 148 FCR 446
3 citations
Jump To
Cite 1 - (2005) 148 FCR 446
Cite 2 - (2005) 148 FCR 446
Cite 3 - (2005) 148 FCR 446
Avel Pty Ltd v Jerdway Pty Ltd & Ors [1998] QPELR 62
2 citations
Jump To
Cite 1 - [1998] QPELR 62
Cite 2 - [1998] QPELR 62
Benter Pty Ltd v Brisbane City Council [2006] QPELR 451
1 citation
Jump To
Cite 1 - [2006] QPELR 451
Bon Accord v Brisbane City Council (2010) QPELR 23
3 citations
Jump To
Cite 1 - (2010) QPELR 23
Cite 2 - (2010) QPELR 23
Cite 3 - (2010) QPELR 23
Buck v Bavone (1976) 135 CLR 110
1 citation
Jump To
Cite 1 - (1976) 135 CLR 110
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
1 citation
Jump To
Cite 1 - (1989) 169 CLR 379
Clayton v Miriam Vale Shire Council (2000) QPELR 320
1 citation
Jump To
Cite 1 - (2000) QPELR 320
Commissioner of the Australian Federal Police v Hart [2016] QCA 215
1 citation
Jump To
Cite 1 - [2016] QCA 215
Di Marco v Brisbane City Council [2006] QPELR 731
1 citation
Jump To
Cite 1 - [2006] QPELR 731
Dunlop v Woollahra Municipal Council (1975) 2 NSWLR 446
3 citations
Jump To
Cite 1 - (1975) 2 NSWLR 446
Cite 2 - (1975) 2 NSWLR 446
Cite 3 - (1975) 2 NSWLR 446
Eschenko v Cummins (2000) QPELR 386
1 citation
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Cite 1 - (2000) QPELR 386
Ferreyra & Ors v Brisbane City Council & Anor (2016) QPELR 334
3 citations
Jump To
Cite 1 - (2016) QPELR 334
Cite 2 - (2016) QPELR 334
Cite 3 - (2016) QPELR 334
Genamson Holdings Pty Ltd v Caboolture Shire Council (2008) 163 LGERA 386
3 citations
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Cite 1 - (2008) 163 LGERA 386
Cite 2 - (2008) 163 LGERA 386
Cite 3 - (2008) 163 LGERA 386
Gladstone Regional Council v Homes R Us (Australia) Pty Ltd [2015] QCA 175
3 citations
Jump To
Cite 1 - [2015] QCA 175
Cite 2 - [2015] QCA 175
Cite 3 - [2015] QCA 175
Jones v Dunkel (1959) 101 CLR 298
2 citations
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Cite 1 - (1959) 101 CLR 298
Cite 2 - (1959) 101 CLR 298
Jones v Sutherland Shire Council (1979) 2 NSWLR 206
1 citation
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Cite 1 - (1979) 2 NSWLR 206
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563
2 citations
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Cite 1 - (1995) 183 CLR 563
Cite 2 - (1995) 183 CLR 563
Landel Pty Ltd and Landrex Pty Ltd v Redland Shire Council [2001] QPELR 480
2 citations
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Cite 1 - [2001] QPELR 480
Cite 2 - [2001] QPELR 480
Liquorland (Australia) Pty Ltd v Gold Coast City Council & Anor (2002) 121 LGERA 197
2 citations
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Cite 1 - (2002) 121 LGERA 197
Cite 2 - (2002) 121 LGERA 197
Mac Services Group Ltd v Belyando Shire Council [2008] QPELR 503
3 citations
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Cite 1 - [2008] QPELR 503
Cite 2 - [2008] QPELR 503
Cite 3 - [2008] QPELR 503
Matijesevic v Logan City Council [1984] 1 Qd R 599
1 citation
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Cite 1 - [1984] 1 Qd R 599
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
2 citations
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Cite 1 - (1986) 162 CLR 24
Cite 2 - (1986) 162 CLR 24
Minister for Immigration v Eshetu (1999) 197 CLR 611
1 citation
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Cite 1 - (1999) 197 CLR 611
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
2 citations
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Cite 1 - (2001) 205 CLR 507
Cite 2 - (2001) 205 CLR 507
Orchard (Oxenford) Developments Pty Ltd v Gold Coast City Council (2015) QPELR 462
3 citations
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Cite 1 - (2015) QPELR 462
Cite 2 - (2015) QPELR 462
Cite 3 - (2015) QPELR 462
Peet Flagstone Pty Ltd & Anor v Logan City Council & Ors [2015] QPELR 68
3 citations
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Cite 1 - [2015] QPELR 68
Cite 2 - [2015] QPELR 68
Cite 3 - [2015] QPELR 68
Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment (1985) 1 AC 132
1 citation
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Cite 1 - (1985) 1 AC 132
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 327 ALR 8
1 citation
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Cite 1 - (2015) 327 ALR 8
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144
1 citation
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Cite 1 - (2011) 244 CLR 144
Ragless v Prospect District Council [1922] SASR 299
1 citation
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Cite 1 - [1922] SASR 299
Rofail v Wells [2011] QPEC 125
2 citations
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Cite 1 - [2011] QPEC 125
Cite 2 - [2011] QPEC 125
Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1
1 citation
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Cite 1 - (1943) 67 CLR 1
Stevenson Group Investments Pty Ltd v Nunn [2013] QPELR 1
2 citations
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Cite 1 - [2013] QPELR 1
Cite 2 - [2013] QPELR 1
Stevenson Group Investments Pty Ltd v Nunn (2011) 190 LGERA 351
1 citation
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Cite 1 - (2011) 190 LGERA 351
Sunshine Coast Regional Council v Sugarbag Road Pty Ltd [2012] QPELR 139
3 citations
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Cite 1 - [2012] QPELR 139
Cite 2 - [2012] QPELR 139
Cite 3 - [2012] QPELR 139
Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 102 FCR 517
1 citation
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Cite 1 - (2000) 102 FCR 517
Warringah Shire Council v Sedevcic (1987) 10 NSW LR 335
3 citations
Jump To
Cite 1 - (1987) 10 NSW LR 335
Cite 2 - (1987) 10 NSW LR 335
Cite 3 - (1987) 10 NSW LR 335
Westfield Management Ltd v Brisbane City Council & Anor (2003) QPELR 520
3 citations
Jump To
Cite 1 - (2003) QPELR 520
Cite 2 - (2003) QPELR 520
Cite 3 - (2003) QPELR 520
Wheldon v Logan City Council [2015] QPELR 640
1 citation
Jump To
Cite 1 - [2015] QPELR 640

Cases Citing

Case NameFull CitationFrequency
48 Stuart Pty Ltd v Brisbane City Council [2016] QPEC 673 citations
Deleje Pty Ltd v Butterworth [2021] QDC 3282 citations
Gold Coast Motorsport Training Centre Pty Ltd v Gold Coast City Council [2021] QPEC 332 citations
Jackson v Brisbane City Council [2017] QPEC 723 citations
Novadeck Pty Ltd v Brisbane City Council [2016] QPEC 682 citations
Steendyk v Brisbane City Council (No 2) [2016] QPEC 511 citation
Wormell Pty Ltd v Gold Coast City Council [2021] QPEC 122 citations
1

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