Trowbridge v Noosa Shire Council
[2018] QPEC 7
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- Unreported Judgment
- Trowbridge v Noosa Shire Council[2018] QPEC 7
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Trowbridge v Noosa Shire Council[2018] QPEC 7
Trowbridge v Noosa Shire Council[2018] QPEC 7
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Trowbridge & Ors v Noosa Shire Council & Ors [2018] QPEC 7 |
PARTIES: | PETER SYDNEY JAMES TROWBRIDGE AND CRAIG CLIFFORD STRUDWICK (Appellants) v NOOSA SHIRE COUNCIL (Respondent) and ALISTAIR McBAIN (1 Co-respondent by election) and NOOSA PARKS ASSOCIATION INC (2 Co-respondent by election) and DARRYL VAUGHAN (3 Co-respondent by election) and PAUL STEWART AND DONNA COUELL (4 Co-respondent by election) and PETER McAVOY (5 Co-respondent by election) and GEOFFREY BROOKES (6 Co-respondent by election) and PHILIP MACK (7 Co-respondent by election) and NEIL KELLY (8 Co-respondent by election) and ROBYN RYLANDS (9 Co-respondent by election) and SUSAN VOLLERT (10 Co-respondent by election) |
FILE NO/S: | 59 of 2017 |
DIVISION: | Planning and Environment Court at Brisbane |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Planning and Environment Court at Maroochydore |
DELIVERED ON: | 27 February 2018 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9 February 2018 |
JUDGE: | Everson DCJ |
ORDER: | Application dismissed |
CATCHWORDS: | PLANNING AND ENVIRONMENT – APPEAL – JURISDICTION – PIECEMEAL ARGUMENT – preliminary legal point in an appeal against a refusal for a development application for a material change of use – where the co-respondents by election allege the development application was piecemeal – whether co-respondents by election can advance piecemeal argument in such an application – whether piecemeal argument should succeed in the context of common property in general and Exclusive Use Areas in particular Planning Act 2016 (Qld) ss 311, 325 Sustainable Planning Act 2009 (Qld) ss 230, 257, 260, 261, 263, 267, 269, 456, 461, 496 Barro Group Pty Limited v Redland Shire Council [2010] 2 QdR 206 Bartlett v Brisbane City Council [2004] 1 QdR 610 Brisbane City Council v Cunningham (2001) 115 LGERA 326 Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485 Savage v Cairns Regional Council [2015] QPELR 848 Savage v Cairns Regional Council (2016) 214 LGERA 192 |
COUNSEL: | M A Williamson QC for the Appellants M J Batty for the Respondent J P Hastie for the 3 to 10 Co-respondents by election |
SOLICITORS: | p & e Law for the Appellants Wakefield Sykes for the Respondent HWL Ebsworth for the 3 to 10 Co-respondents by election |
Introduction
- [1]This is an appeal pursuant to s 461 of the Sustainable Planning Act 2009 (Qld) (“SPA”) against the respondent’s decision to refuse an impact assessable development application seeking approval to use 19 existing eco-cabins situated at 90 Beach Road, Noosa North Shore for both visitor accommodation and permanent residential living. The eco-cabins are part of Community Titles Scheme 37583 which comprises 48 eco-cabins and associated common property. Each eco-cabin is a separate lot. Beyond the boundaries of each lot all of the land is common property. Pursuant to both the existing development approvals and the Community Management Statement (“CMS”) the lots shall be used for visitor accommodation only.[1] No increase in residential density or new physical structures are proposed. The only consequence of the development application is that people will be permitted to reside in the lots permanently.
- [2]The third to tenth co-respondents by election have brought an application in pending proceeding which originally sought a number of declarations relating to the lawfulness of the development application and how it was processed by the respondent. All of this relief has now been abandoned and the third to tenth co-respondents by election now merely seek an order that the appeal be struck out on the ground that the development application was piecemeal because it did not include all the land which was actually the subject of the development application and the consent of the owners of it. This requires the determination of two questions, firstly whether the relevant co-respondents by election are entitled to advance such an argument in this application and, secondly if so whether it should succeed.[2]
The Arguments of the Third to Tenth Co-respondents by Election
- [3]It is uncontentious that the land the subject of the development application is described in it as merely the 19 allotments referred to above and none of the common property in the CMS. It is also uncontentious that the owner of this land is the Body Corporate for the Beach Road Holiday Homes Community Titles Scheme 37583 referred to in the CMS (“the body corporate”).
- [4]The relevant co-respondents by election submit that the development application was piecemeal because it did not include all of the land the subject of the application, namely the common property. There are two bases for this argument. Firstly, as each lot is surrounded by an Exclusive Use Area (“EUA”) it is submitted that a change of use of a lot will necessarily also entail a change in use of the EUA which surrounds it. In this regard I also note that the proposed new use falls within the definition of “detached house” in the respondent’s planning scheme which is defined as including “uses and works incidental to and associated with the detached house”.[3] Secondly, it is submitted that there will be material increases in the scale and intensity of the use of the common property generally, as a consequence of the proposed change of use of the lots in question.
- [5]The EUA’s are described in Clause 17 of the CMS in the following restrictive terms:
“17. EXCLUSIVE USE OF AREA AROUND LOTS
17.1 The owner or occupiers of the Lot are entitled to the exclusive use of that part of the common property surrounding the owner or occupier’s particular Lot as delineated and identified on the Exclusive Use Plans attached to this community management statement and as referred to in Schedule E (“the exclusive use area”).
17.2 The owner or occupier of a Lot entitled to the exclusive use area around their particular Lot under this By-law must:
- only use such area consistent with existing improvements;
- keep the area in a tidy condition;
- not damage any plants or landscape within the exclusive use area and keep (sic) exclusive use area neat and tidy;
- not litter the area;
- not use it so as to create a nuisance to other owner (sic) or occupiers;
- not construct or erect any other structure or improvement whatsoever in or upon such area except with the consent in writing of the Body Corporate Committee;
- not do anything to alter the appearance of any existing improvements.
17.3 The owners or occupiers of Lots entitled to the exclusive use area of their particular Lot under this By-law are responsible to the Body Corporate for the cost of repair and maintenance of the exclusive use area. The Body Corporate is responsible for carrying out the repair and maintenance of the exclusive use area. The amount of an owner’s liability to be levied by the Body Corporate under this By-law on account of such costs shall include any cost of replacement and repair of the fixed improvements to their exclusive use area.
17.4 The Body Corporate and each of their employees, agents and contractors may at any time enter upon the exclusive use area for the purpose of inspecting the same or for carrying out works or effecting repairs and maintenance to any infrastructure, the common property, the Lot or any other improvement or item on the exclusive use area.
17.5 An owner or occupier of a Lot must not park any motor vehicle upon the common property unless use of that part of the common property has been allocated for the purpose of car parking.
17.6 The Lot Plans and Exclusive Use Plans as shown in the Second Schedule of the Beach Holiday Homes Disclosure document shows an exclusive use area around the Lot of no more than three (3) metres from the boundary of the house (excluding driveways) on the Lot.”
- [6]So far as the second argument is concerned, the relevant co-respondents by election allege the proposed change in use of the lots will lead to permanent residents occupying the lots during winter and off-peak periods and thereby placing increasing demands on the leisure centre and on infrastructure such as the water supply and sewerage infrastructure. It is also asserted that the proposed changes in use will generate more waste.[4]
The Relevant Statutory Framework
- [7]Although SPA has now been repealed[5] it continues to apply to this appeal.[6] The mandatory requirements for making a development application are set out in s 260 of SPA. These relevantly include the consent of the owner of the land the subject of the application and any mandatory supporting information including, unsurprisingly, the identification of the land in question.[7] Thereafter s 261 relevantly states:
“261 When application is a properly made application
(1) An application is a properly made application only if—
(a) either—
(i) the application complies with section 260(1) and (3); or
(ii) the assessment manager for the application—
(A) is satisfied the application complies with section 260(1)(a), (b), (d) and (e) and (3); and
(B) receives and, after considering any noncompliance with section 260(1)(c), accepts the application;”
The making of a properly made application will usually result in the assessment manager giving the applicant an acknowledgement notice[8] which brings the application stage of the integrated development assessment system (“IDAS”) to an end.[9] IDAS is defined in s 230 as the system detailed in Chapter 6 of SPA “for integrating State and local government assessment approval processes for development.” The stages of IDAS are prescribed in s 257:
“257 Stages of IDAS
(1) IDAS involves the following possible stages—
- application stage
- information and referral stage
- notification stage
- decision stage
- compliance stage.”
- [8]IDAS had its genesis in the Integrated Planning Act 1997 (Qld) (“IPA”) which preceded SPA. In Barro Group Pty Limited v Redland Shire Council[10] Keane JA observed that “an application which is not a ‘properly made application’…should not proceed to the subsequent stages of the IDAS process.”[11] Those observations apply equally to the regime pursuant to SPA.
- [9]As noted above the appeal has been instituted by the applicants for the development application pursuant to s 461 of SPA. The appeal is by way of hearing anew.[12] In deciding the appeal the court has a broad jurisdiction pursuant to s 496:
“496 Appeal decision
(1) In deciding an appeal the court may make the orders and directions it considers appropriate.
(2) Without limiting subsection (1), the court may—
(a) confirm the decision appealed against; or
(b) change the decision appealed against; or
(c) set aside the decision appealed against and make a decision replacing the decision set aside.
(3) If the court acts under subsection 2(b) or (c), the court’s decision is taken, for this Act, other than this division, to be the decision of the entity making the appealed decision…”[13]
- [10]
The jurisdictional argument of the appellants and the respondent
- [11]Despite the relevant co-respondents by election expressly abandoning their attack on the respondent’s decision that the development application was properly made, both the appellants and the respondent submit that any argument about the lawfulness of the development application is effectively an attack upon the decision of the respondent that it was a properly made application, which allowed it to proceed through the IDAS process. The appellants and the respondent submit that it was for the respondent to determine whether the development application was properly made pursuant to s 261 of SPA, and that any allegation that it was not properly made because it did not include all the common property and therefore the consent of the body corporate, requires an application seeking a declaration to this effect pursuant to s 456 of SPA. It is submitted that this is a matter that can only be challenged by seeking remedies akin to judicial review such as by alleging jurisdictional error on the part of the respondent and is not properly the subject of a merits appeal pursuant to s 461.
- [12]It is common for discreet legal issues which arise in the course of an appeal to be determined as “preliminary points” by applications brought within the appeal. That is what the application before me seeks. The decision in Barro arose from such a course and the Court of Appeal upheld the decision at first instance despite it being brought in this manner.[16] The approach of the Court of Appeal in Barro is consistent with the wide discretion accorded the court in deciding an appeal pursuant to s 496 of SPA. Moreover, as McMurdo JA apparently observed in Savage v Cairns Regional Council[17] the extent of the piecemeal argument[18] may not have been obvious to the assessment manager at the time s 261 of SPA was engaged, when he stated:
“According to the Pioneer Concrete argument, the application should have been more extensive in that it should have been made by reference not only to these particular units but also to the common property. Section 260 was not the obvious source of a requirement for such a more extensive application. It is only a non-compliance with s 260 which could engage s 261.”[19]
- [13]There is nothing in SPA that suggests that the decision of the assessment manager that the development application was a properly made application is not effectively susceptible to challenge in the course of a hearing in an appeal which is by way of hearing anew. As noted above the utility of the decision of the assessment manager is that it allows the development application to progress through the subsequent stages of IDAS. Although it may be preferable that a threshold challenge to the lawfulness of a development application be the subject of a discreet application for a declaration and consequential orders, I am unable to conclude that it cannot also be brought by way of an application in pending proceeding in an appeal. Obviously there will potentially be discretionary considerations relevant to the determination of such an application regardless of the vehicle by which the legal issue is placed before the court for determination, but such a challenge is not restricted to remedies akin to judicial review such as by demonstrating jurisdictional error on the part of the assessment manager.
The concept of a piecemeal application and its applicability to the facts of this application
- [14]
“The essential requirement of the decision in Pioneer Concrete is that the proposed use ‘must be stated in appropriate detail in one application and all the land involved in the use must be the subject of the application’: per Stephen J (at 500: 357). …The Pioneer principle required that each application for a use for a particular purpose be for the whole of the use (including incidental and necessarily associated uses) and for the whole of the land devoted to that use.”
- [15]The facts of Pioneer are important. An application for the use of land as a quarry did not show the proposed access road which was intended to be through adjoining land and not via the dedicated road frontage of the land identified in the application. As Stephen J observed:
“The terrain over which plans showed this road as intended to run, steep hill country, made its route quite unsuitable, at all events for heavily loaded gravel trucks; hence the applicant’s proposal to provide its site, for all practical purposes a land-locked site, with a new route of access. Neither the application for consent nor the advertisement of it made mention of this proposed new access route. This reticence, combined with explicit mention of the site’s road frontage, destined to remain no more than surveyors’ lines on plans, did little to convey to interested members of the public any clear picture of what effect the working of the quarry would have upon local amenity and traffic.”[22]
- [16]The consequences of this were subsequently identified by Stephen J:
“All this would tend to make it difficult for the council or, for that matter, the Local Government Court, to treat as other than somewhat of a formality any subsequent application for consent to the proposed access route. To a degree at least, the outcome of that subsequent application would have been pre-judged, and this despite the fact that the consent given to the first application was conditional upon consent being granted to the later access route application. Such piecemeal applications are likely to place planning authorities or review tribunals in somewhat of a dilemma. The first application may well require assessment of the entire proposal if it is properly to be disposed of; yet the second application will still remain to be dealt with on its merits as an independent matter.”[23]
- [17]It is clear therefore that the decision in Pioneer was specifically aimed at the mischief which arises where the assessment manager or an interested party cannot meaningfully ascertain the precise ambit of the proposed development and accurately guage its true impacts. Obviously pursuant to SPA (as it was pursuant to IPA) these concerns are hopefully addressed by requiring a properly made application which identifies, amongst other things, the land the subject of it and requiring the owner’s written consent, at the commencement of the IDAS process.
- [18]A pedantic or expansive approach to the concept of a piecemeal application is however likely to be productive of injustice. In Bartlett v Brisbane City Council[24] the Court of Appeal was faced with an argument that the development application to enclose the balcony of a residential unit was not properly made pursuant to the equivalent provisions in IPA because it did not include a description of all the land in the community titles scheme and the written consent of all the owners. Jones J with whom the other members of the court agreed, relevantly observed:
“[18] In summary the appellant’s arguments depend on there being some relevant legal connection between Lot 28 and the interests of all other lot owners. That there is a statutory connection between lot owners in respect of certain interests is not in doubt, but it is not a connection which is relevant to the exclusive use by the respondents of their own lot. It is to a material change in this use that the development application is applicable.”[25]
After considering the judgment of Stephen J in Pioneer His Honour further observed:
“[24] The respondents’ proposal is very significant to the use of Lot 28 but has no significance whatsoever to the use of the other lots. Each owner of the other lots will continue to have the same interest in the land constituted by the lot, and the same interest in the common property as that owner had prior to the application. Any concern on the part of another lot owner about the change in amenity or the integrity or aesthetics of the building are simply matters to be agitated in the decision process. They are not, in my view, factors of use which determine the identification of the land.”[26]
- [19]Finally, Jones J noted the real public policy considerations involved in attempting to over apply the decision in Pioneer. He stated:
“To adopt the construction contended for by the appellant would, in practice, have the effect of a lot owner in a large development rarely, if ever, being able to make a development application. One cannot conclude that the legislature intended such a result. Moreover such a construction is only arrived at by a technical and strained application of the terms of the legislation, with an undue focus on interests allied to lot ownership rather than the purpose of identifying the land itself. This is the proper focus as identified by Stephen J in Pioneer Concrete. The other lot holders and the body corporate each have the opportunity to have their respective interests considered through the submission process provided for by s 3.4.9 of IPA.”[27]
- [20]Bartlett was applied in this Court by Morzone QC DCJ in Savage v Cairns Regional Council[28] in dismissing an almost identical argument to that before me in the context of the need to use common property for access purposes where individual lot owners in a strata titled unit complex applied for a material change of use of their units. His decision was confirmed on appeal with McMurdo JA observing:
“But in the present case, as the primary judge held, there was no planned development upon the common property. The reasoning in Bartlett v Brisbane City Council was therefore applicable.”[29]
- [21]It is worth noting that although not the subject of any specific consideration, the common property in the building under consideration in Savage also included leisure facilities namely an outdoor recreation and pool area.[30]
Conclusion
- [22]There is a broad discretion to entertain applications for the determination of preliminary points of law in the course of the determination of an appeal. It extends to the application before me. Should this course be taken about a threshold legal requirement for the IDAS process instead of bringing an originating application seeking declarations and orders, the same discretionary considerations are still potentially relevant to the determination of the issue by the court.
- [23]There are sound policy reasons for restricting the concept of a piecemeal application in the context of applications by individual lot owners in a community titles scheme. These are identified in the reasoning of Jones J in Bartlett above.[31] Although there is some superficial appeal in the argument of the relevant co-respondents by election that if the use of an individual lot changes it must thereby follow that the use of the associated EUA also must change, the argument is ultimately without merit. Where the development application the subject of this appeal involves no new physical structures on the common property and no apparent increase in residential density, speculative assertions about increased use of the common property and infrastructure in it are ultimately not of any consequence from the perspective of a piecemeal application. The rights to use the EUAs and the balance of the common property are significantly constrained by the CMS and will remain so. Any alleged impacts as a consequence of the changing use the subject of the development application can properly be considered in the course of the hearing of the appeal. The land the subject of the development application was clearly identified and the extent of the contemplated changes to the use of it and its likely impacts could readily be gauged by any interested party.
- [24]I therefore dismiss the application.
Footnotes
[1] Affidavit of Gregory John Ovenden filed 19/12/17 Ex “GJO 1”; para 2.2.4 and Affidavit of Luke Ian Walker filed 19/12/17 “Exhibit LIW-2”, p 31.
[2] T1-11 ll 35 – 45.
[3] Affidavit of Gregory John Ovenden filed 19/12/17 Ex “GJO 1”; para 2.3.5.
[4] Affidavit of Donna Therese Couell filed 15/12/17, Affidavit of Darryl Talbot Vaughan, filed 15/12/17 and Affidavit of Gregory John Ovenden filed 19/12/17.
[5] Planning Act 2016 (Qld) s 325.
[6] Ibid s 311.
[7] Section 260(1)(b), (c), and (e), s 263, and IDAS form 1.
[8] Ibid s 267
[9] Ibid s 269.
[10] [2010] 2 QdR 206.
[11] Barro Group Pty Limited v Redland Shire Council [2010] 2 QdR 206, 226.
[12] Ibid s 495.
[13] Ibid s 496.
[14] Ibid s 456(1)(a).
[15] Ibid s 456(1)(e).
[16] Barro Group Pty Limited v Redland Shire Council [2010] 2 QdR 206, 215. See also Brisbane City Council v Cunningham (2001) 115 LGERA 326 and Lewis v Mareeba Shire Council [2000] QPELR 432.
[17] (2016) 214 LGERA 192.
[18] Referred to as the Pioneer Concrete argument by His Honour.
[19] (2016) 214 LGERA 192, 212.
[20] (1980) 145 CLR 485.
[21] (2001) 115 LGERA 326, 329.
[22] (1980) 145 CLR 485, 503.
[23] (1980) 145 CLR 485, 504.
[24] [2004] 1 QdR 610.
[25] [2004] 1 QdR 610, 617.
[26] [2004] 1 QdR 610, 618.
[27] [2004] 1 QdR 610, 619.
[28] [2015] QPELR 848, 859.
[29] Savage v Cairns Regional Council (2016) 214 LGERA 192, 212.
[30] [2015] QPELR 848 at 850.
[31] Bartlett v Brisbane City Council [2004] 1 QdR 610 at 619.