Spry v Brisbane City Council[2017] QPEC 16

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

1. [1]
   HER HONOUR: This is an appeal pursuant to section 462 of the Sustainable Planning Act 2009, against the decision of the respondent, made on 8 July 2016, to approve a development application in respect of land at 72 Gladstone Road, Highgate Hill.

2. [2]
   The development in question is a development application seeking a development permit for material change of use, for multiple-dwelling, three units.

3. [3]
   The issues for determination in the appeal are very short in compass. At the commencement of the hearing, the issues to be determined were those found in paragraph 10 to 14 of the notice of appeal. During submissions on behalf of the appellant, it transpired that all of the complaints by the appellant, apart from the ground contained in paragraph 13 of the notice of appeal, could be adequately addressed by amending condition 36 of the decision notice issued by Council to delete the reference to “Option 1”.

4. [4]
   Condition 36 reads:

Site Drainage - Major

Provide an internal drainage system to collect stormwater run-off from all proposed lots, roofed and developed surface areas, and any run-off onto the site from adjacent areas and convey the collected run-off to a lawful point of discharge, in accordance with the relevant Brisbane Planning Scheme Codes.

Option 1.  Submit to Development Assessment CCTV and as constructed plans demonstrating the existing 225 mm dia pipe located in downstream property (7 West Street – L5 RP12156) is in working order.  If this can be demonstrated to the satisfaction of Development Assessment, no further action is required.

Option 2. Provide connection to lawful point of discharge (e.g. pump systems) in accordance with the relevant Brisbane Planning Scheme Codes, including submission of plans as outlined below.

Note. The stormwater design must ensure the storm water runoff from the site does not adversely impact on flooding or drainage (peak discharge and duration for all storm events up to the 1% AEP event) of properties that are upstream, downstream or adjacent to the site.  Some developments may require implementation of one or more mitigation measures to offset adverse impacts, (e.g. stormwater detention, rainwater tanks, and upgrade of stormwater drainage infrastructure).

Note. Guidance for the preparation of drawings and or documents to comply with this condition is provided in the Brisbane Planning Scheme Policies.

36(a) Submit Site Drainage Drawings

Submit and obtain approval from Development Assessment, site drainage drawings and engineering calculations, prepared and certified by a Registered Professional Engineer Queensland, in accordance with the relevant Brisbane Planning Scheme Codes.

Timing: Prior to site/operational/building work commencing

36(b) Implement Approved Drawings

Carry out the works in accordance with the approved site drainage drawings.

Timing: Prior to issue of Certificate of Classification/ File Inspection Certificate or prior to commencement of use, whichever comes first (MCU or BW), or prior to Council’s notation of the plan of subdivision (ROL), and then to be maintained

36(c) Submit As Constructed Drawings

Submit “As Constructed” drawings prepared by a Registered Professional Engineer Queensland certifying that the works have been completed in accordance with the approved site drainage drawings. 

Timing: Prior to issue of Certificate of Classification/Final Inspection Certificate or prior to commencement of use, whichever comes first (MCU or BW), or prior to Council’s notation of the plan of subdivision (ROL,) and then to be maintained

5. [5]
   The other condition referred to in the notice of appeal was condition 35, with respect to lawful point of discharge. It provided that:

If required, submit to Development Assessment, evidence of written consent for a lawful point of discharge from the owners of properties affected by any stormwater discharge from the site.

Note. Refer to Council’s website for a standard lawful point of discharge agreement template which is acceptable to council.

6. [6]
   The timing for that condition was stated to be prior to site/operational/building work commencing.

7. [7]
   In broad terms, paragraphs 10, 11, 12 and 14 of the notice of appeal took issue with conditions 35 and 36 on the basis that they lacked finality and certainty and, rather curiously, on the basis that they were so unreasonable that no reasonable decision maker would have imposed them. It seems from the submissions on behalf of the appellant that all of these allegations were made on the basis that option 1 in condition 36 was unable to be achieved. It was alleged to be incapable of performance as it refers to a pipe that is said not to exist.

8. [8]
   Regardless of whether the pipe exists or not, and whether that option is capable of being complied with or not, when properly construed, condition 36 imposes an obligation to provide an internal drainage system to collect stormwater run-off from all proposed lots, roofed and developed surface areas, and any run-off onto the site from adjacent areas and convey the collected run-off to a lawful point of discharge. While the condition went on to offer two possible options to achieve that end, the inability to achieve one option does not render the condition incapable of performance. That conclusion does not follow from a proper reading of the condition, when one has regard to ordinary grammar and the ordinary meaning of the word “option”.

9. [9]
   This issue, however, was short-circuited by the respondent and the co-respondent agreeing, without conceding the point, to the deletion of option 1 from condition 36, as well as deletion of the words “option 2” but without deleting the substantive paragraph associated with option 2. Upon that indication from the other parties, the appellant conceded that the grounds of appeal contained in paragraphs 10, 11, 12 and 14 of the notice of appeal were no longer in issue, and need not occupy the court’s time.

10. [10]
    That leaves for determination only the ground of appeal in paragraph 13 of the notice of appeal. That paragraph says:

The decision failed to impose a condition that no connection be made to the foul water/private pipeline traversing the Land, 9 West Street and 11 West Street, Highgate Hill.

11. [11]
    It is true that the decision notice issued by council does not impose such a condition in those terms. Unfortunately for the appellant, the allegation in the notice of appeal went no further. There was no identified basis for the imposition of the condition.

12. [12]
    There was no allegation in the notice of appeal of any conflict with the planning scheme, nor any allegation of unacceptable or adverse impacts from the proposed development. The allegation in paragraph 13 was not coupled with any allegation that put in issue the need for such a condition by reference to some planning purpose. For example, there was no allegation or suggestion in the notice of appeal that, for engineering reasons, it was necessary to impose such a condition. While the co-respondent has the onus in the appeal, in the absence of allegations of that nature, there was no issue for the co-respondent to address. The absence of evidence of an engineering reason or a planning purpose to impose the condition is not a failing on the part of the co-respondent in terms of the co-respondent’s onus. The absence of the evidence is explained entirely by a failure in the notice of appeal to put in issue the adequacy of the development absent such a condition. There is an absence of any allegation about the adequacy of an approval of the development in absence of that condition. There is no allegation that absent the condition the proposed development would cause some adverse impact, result in conflict with the scheme, or something of that nature.

13. [13]
    In submissions, the appellant has directed my attention to a decision of Sansom v Beaudesert Shire Council [2003] QPELR 335.  Attention was particularly drawn to paragraph 37 of that judgment, where His Honour Senior Judge Skoien observed:

From the point of view of the perfectionist, it may be said to be otiose to put a condition on an approval which says, effectively, “it is a condition that you obey the law” but it is often seen, does no harm and acts as a reminder.  And it does serve the useful purpose of making a breach of the law a breach of the development approval from which different or extra consequences may flow.

14. [14]
    There is, however, no allegation in the notice of appeal that the provision of a connection to a foul water or private pipeline traversing the land, 9 West Street and 11 West Street, Highgate Hill, would amount to a breach of the law.

15. [15]
    My attention was directed to Brisbane City Council’s planning scheme, including the Infrastructure design planning scheme policy, which, at section 7.6.7.2, contains the following:

7.6.7.2  Foul-water lines

3. (1)
   New stormwater connections to existing foul-water lines are not permitted, nor is it acceptable to assume that these lines are redundant.

3. (2)
   Development must not damage these lines and any proposed diversion must connect to the existing stormwater system or a lawful point of discharge.

16. [16]
    That provision, of course, appears in a planning scheme policy, not the planning scheme itself. The planning scheme policy is called up by the Stormwater code, which, for the subject development, was a prescribed secondary code. The Stormwater code calls up the Infrastructure design planning scheme policy in two ways. In the application part of the code, under the provisions with respect to application, there is a note. The note says:

Where this code includes performance outcomes or acceptable outcomes that relate to infrastructure design and construction works, guidance is provided in the Infrastructure design planning scheme policy.

17. [17]
    There is also reference to the Infrastructure design planning scheme policy in the acceptable outcomes within the Stormwater code. That does not, however, establish that compliance with section 7.6.7.2 of the Infrastructure design planning scheme policy is necessary. Non-compliance with that provision does not necessarily amount to conflict with the planning scheme. As much is evident when one has regard to cases such as SDW Projects v Gold Coast City Council [2007] QPELR 24; [2006] QPEC 74.

18. [18]
    Therefore, I am persuaded that there is no identified need to impose the condition, despite the reference to Sansom v Beaudesert Shire Council.    As was observed by His Honour Judge Rackemann in Intrapac Parkridge Pty Ltd v Logan City Council & Anor [2015] QPELR 49;  [2014] QPEC 48, at paragraph 23:

The power to approve a development application includes the power to do so subject to conditions.  That power is expressed in general terms, but is subject to the constraints of s 406 of the Sustainable Planning Act (SPA), which relevantly provides –

19. [19]
    and then that section is set out. It is clear to me that His Honour intended to refer to section 345 of the Sustainable Planning Act.  The provisions are materially in the same terms.  His Honour Judge Rackemann goes on to say, at paragraph 24:

There is, of course, no requirement for an assessment manager or, on appeal, the court to impose each and every condition which might pass one of the above tests.  There is a relatively broad residual discretion as to what lawful conditions to impose on the approval at hand.  That discretion, while broad, must be exercised for a proper planning purpose and not for any ulterior purpose.  A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the relevant authority.  In the case of the SPA, the assessment manager’s decision, including a decision to approve subject to conditions, must be based on the assessment of the application under Div 2 of Pt 5.  That includes assessment by reference to the planning scheme.

20. [20]
    As I have said, it is not sufficient to simply point to a provision in a planning scheme policy that indicates that a particular means of discharging stormwater is not preferred, namely discharge to existing foul water lines to justify the imposition of a condition. That is particularly so in this case, given there are conditions 35 and 36, which, with the deletion agreed to by the respondent and co-respondent, are not disputed by the appellant. Those conditions provide an appropriate mechanism to ensure the issue of discharge of stormwater is appropriately addressed.

21. [21]
    Further, there is nothing in the material before me which evidences an intention on the part of the developer to undertake the proposed development by connecting to what the appellant describes as a foul water/private pipeline. I should note that it was not accepted by the co-respondent that the pipe in question is, in fact, a foul water line. There certainly is no evidence before me that the pipe is a foul water line. The description in the information request of the pipe in those terms is not evidence of the truth of the description.

22. [22]
    It was confirmed by the co-respondent that, having not challenged the conditions, the proposal is to build the development and provide for drainage and stormwater run-off in accordance with conditions 35 and 36. To impose the condition requested by the appellant would be pre-emptive, and it is a step that is not necessary given the absence of allegations of anything untoward with the conditions 35 and 36 once the deletion of option 1 and reference to the words “option 2” is made. The lack of necessity is re-enforced by the absence of an allegation that the proposed development would conflict with the planning scheme if such a condition was not imposed.

23. [23]
    In the circumstances, I propose to make orders that would give the development approval but with the deletions to condition 36 as agreed by the respondent and co-respondent.