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Harburg Nominees Pty Ltd v Brisbane City Council[2016] QPEC 52

Harburg Nominees Pty Ltd v Brisbane City Council[2016] QPEC 52

 

PLANNING & ENVIRONMENT COURT OF  QUEENSLAND

 

CITATION:

Harburg Nominees Pty Ltd v Brisbane City Council [2016] QPEC 52

PARTIES:

HARBURG NOMINEES PTY LTD ACN 103 245 923 AS TRUSTEE FOR TW SUPERANNUATION FUND

Appellant

v

BRISBANE CITY COUNCIL

Respondent

&

CHIEF EXECUTIVE ADMINISTERING THE SUSTAINABLE PLANNING ACT 2009

Co-Respondent

FILE NO/S:

4191/15

DIVISION:

Planning and Environment

PROCEEDING:

Application

DELIVERED ON:

19 October 2016

DELIVERED AT:

Brisbane

HEARING DATE:

14 October 2016

JUDGE:

Bowskill QC DCJ

ORDER:

The application filed on 30 September 2016 is allowed; order as per paragraph [27] below.

CATCHWORDS:

PLANNING & ENVIRONMENT – Appeal against condition imposed by the co-respondent concurrence agency, requiring implementation of road works to upgrade the left turn facility at an intersection near the site of the approved development, prior to commencement of the approved material change of use – Where the appellant seeks an order permitting the approved development to start, before the appeal is decided – Whether the court can be satisfied the outcome of the appeal would not be affected if the order is made – Whether the order ought to be made, in the exercise of the court’s discretion

Sustainable Planning Act 2009 (Qld), s 490(3)

McConnell Dowell Pty Ltd v Gold Coast City Council [2012] QPEC 77

Rauchle v Gatton Shire Council [2007] QPEC 62

TDD Shaftson Pty Ltd v Brisbane City Council [2005] QPEC 19

Woolworths Ltd v Maryborough City Council [2005] 2 Qd R 203

COUNSEL:

M D Hinson QC for the Appellant

J S Brien for the Co-Respondent

SOLICITORS:

Connor O'Meara Solicitors for the Appellant

Ashurst for the Co-Respondent

  1. [1]
    On 15 October 2015 the respondent Council approved a development application made by the appellant, Harburg Nominees Pty Ltd, for a development permit for a material change of use for a medium impact industry (a transport depot) on land at 132 Postle Street, Acadia Ridge.  The co-respondent was a concurrence agency for the development application.  The co-respondent imposed a condition on the approval (condition 4) which required that, prior to commencement of the use, particular road works be carried out to upgrade the left turn facility from Beaudesert Road (southbound) onto Kerry Road (which is about a block to the east of the proposed access to the subject site).
  2. [2]
    On 27 October 2015 the appellant appealed to this Court against the imposition of condition 4, seeking an order that condition 4 be deleted, and for any necessary consequential changes to be made to the conditions package otherwise applying to the development approval.  
  3. [3]
    On 13 November 2015 an order was made under s 490(3) of the Sustainable Planning Act 2009 allowing the appellant to start part of the development, before the appeal is decided (being all works, including operational works and building works, up to the commencement of the approved use).
  4. [4]
    The appeal was heard on 30 June 2016, and the decision was reserved.  Judgment on the appeal has not yet been delivered. 
  5. [5]
    The appellant now applies to vary paragraph 1 of the order made on 13 November 2015, to allow the approved use to start, before the appeal is decided.
  6. [6]
    The reasons for making this application are explained by Mr Harburg, a director of Mossport Properties Pty Ltd, which is the current owner of the land the subject of these proceedings (having become the owner after these proceedings were commenced), and a company related to the appellant.  According to Mr Harburg, the building works and operational works for the development are nearing completion, with:
    1. (a)
      the warehouse (including the warehouse office) and truck workshop being  structurally complete with only internal fitouts remaining to be completed;
    2. (b)
      the two level office building being completely constructed and ready for occupancy, subject to the issue of a certificate of completion; and
    3. (c)
      the car parking and manoeuvring areas being 95% complete.
  7. [7]
    Mr Harburg also says that Mossport has been advised by the company carrying out the works that the certificate of completion for the development is expected to be issued on 21 October 2016.  Mr Harburg refers to Mossport having entered into an agreement with Lindsay Transport Pty Ltd for the lease of the developed land and says that under that agreement handover of the developed land is scheduled to occur on 28 October 2016.  Mr Harburg says that if the approved use is not able to commence by 28 October 2016 Mossport will potentially be in breach of its obligations under the lease agreement.  
  8. [8]
    Mr Harburg says that, in the event the appeal is decided in a way which requires the roadworks to be undertaken, those works could be completed within 6 weeks, but it would not now be possible for that to occur by 28 October 2016.   He offers an undertaking, on behalf of Mossport, to carry out any external roadworks that are required to be undertaken, as soon as reasonably practicable after judgment in the appeal is delivered.
  9. [9]
    On behalf of the appellant, it is submitted that the court can be satisfied, for the purposes of s 490(3) of the Planning Act, that the outcome of the appeal would not be affected if the development, that is to say the approved use, is started before the appeal is decided.  The appellant submits that the outcome of the appeal depends on the court’s assessment of whether condition 4 is relevant to, but not an unreasonable imposition on the development, as the co-respondent submits; or is not, as the appellant submits.  The outcome of the appeal (imposition or non-imposition of the condition) cannot be affected by the making of the material change of use.  This is not a case where it is contended that without the condition the development should not be approved at all.
  10. [10]
    The co-respondent opposes the order sought, submitting that the outcome of the appeal would be affected if the order was made.  The co-respondent relies upon the observations made by Keane JA (as his Honour then was) in Woolworths Ltd v Maryborough City Council [2005] 2 Qd R 203 at [24], as follows:

“Finally, in relation to the scope of the power conferred on this Court by s 4.1.59(2),[1] it may be that, when the provision conditions the exercise by the Court of the power conferred thereby by requiring that the Court be satisfied that ‘the outcome of the appeal before it would not be affected if the development or part of the development is started before the appeal before it is decided’, the provision is concerned with the possibility that the outcome of the appeal may be superseded by the commencement of the development. It seems to me that if the outcome of the appeal is such that the development which has occurred under the Court’s approval is not authorised by the scheme of rights and duties reflected in the outcome of the appeal, then the outcome of the appeal will have been affected in this sense. If this approach is correct, then the power conferred by s 4.1.59(2) would be limited to uncontroversial aspects of the proposed development, and would not be available to authorise the very development which is in controversy in the appeal. This approach seems to me to draw support from the passage from the Explanatory Notes highlighted above. This having been said, I acknowledge that this point of view was not argued by either of the respondents, and so I refrain from expressing any conclusion on the point.”[2]

  1. [11]
    The co-respondent submits that, in the present case, to make an order which would allow the use to commence, before the appeal has been decided, would be to “allow development to commence which may not be authorised by obligations or duties reflected by way of conditions if the Co-Respondent is ultimately successful in the appeal”.  The essence of the co-respondent’s argument is that the appeal is about a condition which it says is required to be met prior to the use commencing.  If the use is allowed to commence before the decision on the appeal about the condition has been made, in the event that the decision on the appeal is that condition 4 must remain, the outcome of the appeal will have been affected.
  2. [12]
    The co-respondent also submits that there are discretionary factors which weigh against the making of the order now sought, namely:
    1. (a)
      that the material relied upon by the appellant does not show any particular prejudice that will be caused by waiting for the outcome of the appeal (having regard to the qualified language, of a certificate of completion being expected to be issued on 21 October; handover of the developed land being scheduled to occur on 28 October; and Mossport potentially being in breach of its lease agreement if the approved use is not able to commence by that date); and
    2. (b)
      that this is to be considered in the context of a contested hearing on the appeal, in which it was the co-respondent’s position that the requirement to modify the left turn facility arises due to safety concerns, and that the roadworks are required to be undertaken prior to commencement of the use.
  3. [13]
    Woolworths Ltd v Maryborough City Council was a very different case from this one.  It involved an application to the Court of Appeal for an order to be made, before the grant of leave to appeal (let alone the decision on the appeal), allowing an unlawful use to continue.  In that case, the controversial “development” (use of premises for the sale of food and groceries) had been carried on for some time, without the benefit of a development permit authorising that use. Although the Council did subsequently grant approval for that use, following an appeal to this court the Council’s decision was set aside.   An application for leave to appeal that decision was then made to the Court of Appeal.  Prior to that application being dealt with, an application was made under s 4.1.59(2) of the Integrated Planning Act for an order allowing the use to continue.  As Keane JA observed, at [18], “the effect of the application is to obtain the approval of this Court to continue a use commenced and, after 17 December 2004 [the date this court set aside the Council’s decision], continued, unlawfully”.  
  4. [14]
    The application was refused, firstly, on the basis that since leave to appeal had not yet been granted, and there was therefore no appeal on foot, the court had no power to grant the relief sought under s 4.1.59(2) (at [5]-[11] per Keane JA, Williams JA and Douglas J agreeing).  However, it was also held that s 4.1.59(2) did not empower the Court to allow unlawful development to continue – in the sense of rendering lawful that which has otherwise been declared to be unlawful by the legislature – as compared with allowing development to start in particular circumstances, pending a decision on an appeal (at [18]-[23]). 
  5. [15]
    Keane JA’s observations at [24], set out above, are to be read in that context.  What his Honour said was that “if the outcome of the appeal is such that the development which has occurred under the Court’s approval [that is, the continuing of the otherwise unlawful use of the premises, under the Court’s approval, had it been granted, under s 4.1.59(2)] is not authorised by the scheme of rights and duties reflected in the outcome of the appeal [perhaps because the appeal is refused, or allowed but on different terms as to the nature of the use, or conditions of the use], then the outcome of the appeal will have been affected in this sense”.   His Honour commented that if that approach is correct, s 4.1.59(2) would be limited to uncontroversial aspects of the proposed development, and would not be available to authorise the very development which is in controversy in the appeal.
  6. [16]
    In this case, the development itself is not in controversy in the appeal.  It is only condition 4, which concerns roadworks to the left turn facility at an intersection a block to the east of the site access to the subject site.  Counsel for the co-respondent confirmed that it is not contended that the approved development ought not be allowed to proceed, even if condition 4 is ultimately, when the appeal is decided, not retained.[3]  
  7. [17]
    If the appeal is decided favourably to the appellant, condition 4 will be removed.  If the appeal is decided favourably to the co-respondent, either condition 4 will remain, requiring the appellant to carry out the roadworks, or, as I understand it, another possible outcome is that a financial contribution to the upgrade of the left turn facility may be required from the appellant.   As already mentioned, Mr Harburg, on behalf of Mossport, has offered an undertaking to carry out any external roadworks that are required to be undertaken, as soon as reasonably practicable after judgment in the appeal is delivered. 
  8. [18]
    If the outcome of the appeal is that condition 4 remains, allowing the use to commence now, without condition 4 (on the basis of an undertaking to construct the required roadworks as soon as reasonably practicable after the decision is delivered) does not, in my view, mean that development will have been allowed to occur which is, in a substantive way, “not authorised by the scheme of rights and duties reflected in the outcome of the appeal”.  The outcome of the appeal will not have been superseded by commencement of the development (cf Woolworths at [24]).  The timing of compliance with condition 4 will need to be adjusted; but as a matter of substance the effect of the undertaking is that, if the decision on the appeal is that condition 4 remains, it will have to be met as a condition of the lawful continuation of the use.
  9. [19]
    For the reasons further discussed at paragraph [24] below, although I appreciate that the co-respondent has pressed for condition 4 to be met prior to the commencement of the use, I am not persuaded that the timing of compliance with condition 4 (if the decision on the appeal is that it remains) is something that militates against the order sought under s 490(3) being made.[4]
  10. [20]
    Judges of this court have previously expressed the view that a liberal interpretation and wide application should be given to provisions like s 490(3),[5] in a manner not inconsistent with Keane JA’s observations in Woolworths.[6]  This can also be seen to be consistent with one of the purposes of the Planning Act, which is to manage the process by which development takes place, including by ensuring the process is accountable, effective and efficient (s 3(a)).
  11. [21]
    In the circumstances, I am satisfied that the outcome of the appeal will not be affected by making the order now sought by the appellant. 
  12. [22]
    I am also satisfied that it is appropriate to exercise my discretion to make the order sought by the appellant, allowing the development to start before the appeal is decided.
  13. [23]
    Whilst I accept that the material identifies only a potential exposure to contractual liability, if the approved use is not able to commence by 28 October 2016, having regard to Mr Harburg’s evidence overall, as to the stage of near completion of the works; the limited scope of the appeal; and the chronology of this proceeding, I regard the matters outlined by Mr Harburg as supporting the exercise of discretion in favour of granting the order sought.
  14. [24]
    As to the co-respondent’s argument concerning safety, I was taken, by Mr Hinson QC on behalf of the appellant, to parts of the evidence of the traffic expert relied upon by the co-respondent in the appeal, Mr Beard.  It is apparent from the evidence that it was common ground between the traffic engineers that there is no crash data indicating that there are existing safety problems at this particular intersection; that the reason for Mr Beard expressing the opinion that an upgrade to the left turn facility was required was in order to reduce potential hazards in the future; and that the evidence was to the effect that, once the use commences, there can be expected to be some increase in traffic movements at this intersection, but the potential increase in numbers of potential conflicts is not great.[7]  I have not been asked to, nor would it be appropriate for me to, consider the whole of the evidence on the appeal, or to stray into the merits of the appeal.  However, in considering whether, as a matter of discretion, it is appropriate to grant the order sought – that is in considering where the balance of convenience lies –it is relevant to consider the dimensions of the potential safety risk, and having regard to the circumstances overall, I am satisfied they are not such as to weigh against making the order.
  15. [25]
    I note also that in the event the co-respondent is successful on the appeal, both the appellant and the co-respondent have agreed upon a variation in the terms of condition 4 (reflecting agreement reached by the traffic experts who gave evidence in the appeal as to the appropriate design of the left turn facility).[8]
  16. [26]
    Given that the appeal is concerned only with a condition relating to a part of a nearby intersection; there is no other aspect of the development which is controversial; the works are almost completed; there is a contractual obligation to hand over the developed land by 28 October 2016, and delay in commencement of the approved use places the landowner in potential breach of that obligation; the safety issues are not such as to weigh the balance of convenience against permitting the use to commence; and the landowner has given an undertaking to carry out any required roadworks as soon as reasonably practicable after the decision in the appeal is handed down; in my view it is appropriate to grant the orders sought by the appellant.
  1. [27]
    The order of the court will therefore be as follows:

UPON THE UNDERTAKING by Mossport Properties Pty Ltd, by its director Lachlan Edward Harburg, to carry out any external roadworks that are required to be undertaken, as soon as reasonably practicable after judgment in the appeal is delivered

AND UPON the Court being satisfied that the outcome of the appeal would not be affected if the development is started before the appeal is decided

IT IS ORDERED THAT:

  1. The development, including the approved use, may start before the appeal is decided.  The development is subject to the conditions contained in the Decision Notice dated 15 October 2015, save for:
  1. (a)
    Condition 4 of the Co-Respondent’s Amended Concurrence Agency Response dated 31 August 2015;
  1. (b)
    Condition 52 of the Decision Notice, to the extent it relates to Condition 4 of the Co-Respondent’s Amended Concurrence Agency Response dated 31 August 2015.
  1. In the event that the appeal is decided in a way which requires the undertaking of roadworks, those roadworks are to be carried out as soon as reasonably practicable after the Court’s decision on the appeal is delivered.

Footnotes

[1]  This was the equivalent, in the Integrated Planning Act 1997, to s 501 of the Planning Act (staying development until an appeal to the Court of Appeal is decided or withdrawn, but providing for the Court of Appeal to allow development to start before the appeal is decided, if satisfied the outcome of the appeal would not be affected); which is in similar terms to s 490 (staying development until an appeal to this court has been decided).

[2]  Underlining added.

[3]  Cf Waterfront (Qld) Pty Ltd v Hervey Bay City Council [2008] QPELR 523 at [12], [13] and [28] per Brabazon QC DCJ (where, in the context of an appeal against conditions applying to a development approval, the Council contended that if one of the challenged conditions was removed, the entire application ought to be refused); cf also Rauchle v Gatton Shire Council [2007] QPEC 62 at p 5 per Rackemann DCJ (where, if the appellant’s arguments were successful, that would lead to the appeal being allowed, and the development application being refused, rather than simply the imposition of further conditions; and as such the order being sought in that case was one which “seeks the start of development the acceptability of which is in dispute in the current proceedings”).

[4]  Cf Rauchle v Gatton Shire Council [2007] QPEC 62 at p 8, where Rackemann DCJ noted, in addition to the point referred to in the previous footnote, that “The Council is opposed to the development being permitted to start without [Chalk Mine Road, an unsealed no through road, closest to the development site, and terminating at the chalk mine] being upgraded and there is no material before me which would satisfy me that that road, in its existing condition, is suitable for use by additional heavy vehicles associated with the development, even on an interim basis”.

[5] TDD Shaftson Pty Ltd v Brisbane City Council [2005] QPEC 19 at [15] per Skoien SJDC; McConnell Dowell Pty Ltd v Gold Coast City Council [2012] QPEC 77 at p 4 per Robin QC DCJ.

[6] McConnell Dowell v Gold Coast City Council, ibid.

[7]  For example, in the morning peak hour period the evidence indicated an additional 6 potential occasions when there might be through traffic movement (east to west along Kerry Road, through the intersection) conflicting with traffic turning left into Kerry Road from Beaudesert Road (with the evidence being that at present, without the development, there are 20 such potential occasions).

[8]  See [7] of the submissions of the co-respondent on this application.

Close

Editorial Notes

  • Published Case Name:

    Harburg Nominees Pty Ltd v Brisbane City Council

  • Shortened Case Name:

    Harburg Nominees Pty Ltd v Brisbane City Council

  • MNC:

    [2016] QPEC 52

  • Court:

    QPEC

  • Judge(s):

    Bowskill DCJ

  • Date:

    19 Oct 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
McConnell Dowell Proprietary Limited v Gold Coast City Council [2012] QPEC 77
2 citations
Jump To
Cite 1 - [2012] QPEC 77
Cite 2 - [2012] QPEC 77
Rauchle v Gatton Shire Council [2007] QPEC 62
3 citations
Jump To
Cite 1 - [2007] QPEC 62
Cite 2 - [2007] QPEC 62
Cite 3 - [2007] QPEC 62
TDD Shafston Pty Ltd v Brisbane City Council [2005] QPEC 19
2 citations
Jump To
Cite 1 - [2005] QPEC 19
Cite 2 - [2005] QPEC 19
Waterfront (Qld) Pty Ltd v Hervey Bay City Council [2008] QPELR 523
1 citation
Jump To
Cite 1 - [2008] QPELR 523
Woolworths Ltd v Maryborough City Council[2005] 2 Qd R 203; [2005] QCA 62
2 citations
Jump To
Cite 1 - [2005] 2 Qd R 203
Cite 2 - [2005] 2 Qd R 203

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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