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Bigini Pty Ltd v Brisbane City Council & Ors QPEC 1
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Bigini Pty Ltd v Brisbane City Council & Ors  QPEC 1
BIGINI PTY LTD
BRISBANE CITY COUNCIL
(First co-respondent by election)
GENERIC INTERNATIONAL PTY LTD
(Second co-respondent by election)
(Third co-respondent by election)
(Forth co-respondent by election)
(Fifth co-respondent by election)
(Sixth co-respondent by election)
Planning and Environment Court
Planning and Environment Court, Brisbane
16 January 2019
20 December 2018
Williamson QC DCJ
1. The appeal is listed for review at 9:15 am on 30 January 2019.
PLANNING AND ENVIRONMENT – APPEAL – where co-respondents contend owner of subject land did not consent to the making of the development application – where co-respondents contend development application was not a properly made application for the purposes of s.261 of the Sustainable Planning Act 2009.
Sustainable Planning Act 2009, ss.260, 261, 263, 267, 269, 276, 351, 355, 461 and 587
Planning & Environment Court Act 2016, ss.7 and 11
Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Petrie v Burnett Shire Council  QPELR 510
Savage & Anor v Cairns Regional Council  QCA 103
Perivall Pty Ltd v Rockhampton Regional Council & Ors  QPEC 46
McKean v Council of the City of Gold Coast  QPEC 61
J Hastie for the Appellant
J Ong as agent for the Second & Sixth co-respondents by election
Third co-respondent by election, self-represented
Fifth co-respondent by election, self-represented
MacPherson Kelley for the Appellant
Brisbane City Legal for the Respondent
- This is an applicant appeal commenced under s.461(1)(a) of the Sustainable Planning Act 2009 (SPA). The appeal is against the council’s decision to refuse a development application for a Multi-unit dwelling on land situated at 284 Sir Fred Schonell Drive, St Lucia (the land). The application was made at a time when City Plan 2000 was in force, and was impact assessable. Adverse submissions were received by the council about the application during the notification stage of the IDAS process. Six of the submitters have elected to co-respond to this appeal (the co-respondents).
- On 5 December 2018, I ordered that the appeal be listed to determine a number of preliminary issues raised by the co-respondents. The preliminary issues are identified at paragraphs 1, 2, 3, 4, 9 and 10 of a document titled “CO-RESPONDENTS’ CONSOLIDATED GROUNDS OF OBJECTION TO APPEAL No. 3882 of 2016 – submission 3”. In summary, the co-respondents allege that the Appellant’s (Bigini) development application was not a properly made application for the purposes of s.261 of SPA. The co-respondents advance one reason in support of this proposition. They contend Bigini did not have the consent of the owner of the land to the making of the application as required by s.263 of SPA.
- By way of background, the development application the subject of the appeal was made to the council on 17 April 2014. The application material included a completed IDAS Form 1 (Form 1), which identified the land the subject of the application. The land was described in Form 1 as Lot 100 on SP227474 (Lot 100) and Lot 0 on BUP4541 (Lot 0).
- The Multi-unit dwelling the subject of the development application is proposed on Lot 100. The registered owner of this lot is Kalbita Pty Ltd (Kalbita). A company search reveals that Mr Alexander Peden is a director of Kalbita. He is also a director of Bigini. It was submitted that Bigini is a wholly owned subsidiary of Kalbita.
- Lot 100 adjoins Lot 0, which is common property for an existing apartment building. The entity with control of Lot 0 is the body corporate for the Larnarca Court CTS 10647. The apartment complex comprises eight lots. Kalbita has an interest in five of the eight lots. Lot 0 was included in the development application for access purposes only. Lot 100 does not have direct access to Sir Fred Schonell Drive. Access for the proposal is to be obtained via an existing easement over Lot 0.
- SPA was in force at the date the development application was made to the council. Section 263 of SPA provides when land owner’s consent is required for an application. Sub-section (1)(a) of this provision states:
“263 When owner’s consent is required for application
(1) The consent of the owner of the land the subject of an application is required for its making if the application is for—
(a) a material change of use of premises or reconfiguring a lot; or…”
- It is uncontroversial between the parties that Bigini’s development application engaged s.263(1)(a) of SPA and, as a consequence, land owner’s consent was required for the making of the application. As owner’s consent was required, s.260(1)(e) of SPA was relevant to the application. This provision states:
“260 Applying for development approval
(1) Each application must -
(e) if, under section 263, the consent of the owner of the land the subject of the application is required for the making of the application—
(i) contain or be accompanied by the owner’s written consent; or
(ii) include a declaration by the applicant that the owner has given written consent to the making of the application…”
- Section 260(1)(e) of SPA provides that an application may demonstrate compliance with the owner’s consent requirements of the Act in one of two ways. First, an application may contain, or be accompanied by, the land owner’s written consent. Second, and alternatively, an application may include a declaration by the applicant that the land owner has given written consent to the making of the application.
- A review of the completed Form 1 reveals that Bigini elected to provide the declaration contemplated by s.260(1)(e)(ii) of SPA. Section 6, Table H of Form 1 contains the declaration given by Bigini in its development application. The declaration states:
“By making this application, I, the applicant, declare that the owner has given written consent to the making of the application.”
- It was pointed out by Mr Loos that the giving of the declaration in Table H of Form 1 was not without consequence. At the time the declaration was provided, it was an offence under s.587(2) of SPA for an applicant to provide a document to an assessment manager containing information that it knew was false or misleading in a material particular. Mr Loos drew attention to section 14 of Form 1 where the following declaration was also given by Bigini in its development application:
“By making this application, I declare that all information in this application is true and correct (Note: it is unlawful to provide false or misleading information)”
- On 14 May 2014, the council issued an acknowledgment notice for the development application. This notice must be given by an assessment manager for an impact assessable development application. It must be given within 10 business days after the assessment manager receives a ‘properly made application’. To determine whether Bigini’s application was properly made, the council was required to consider the requirements of s.261(1) of SPA. This provision states, in part:
“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 non-compliance with section 260(1)(c), excepts the application; and…”
- The acknowledgement notice issued by the council on 14 May 2014 states that Bigini’s development application was treated as being properly made on, and from, 30 April 2014. This is evidence that the council, as assessment manager, was satisfied the development application complied with the requirements of s.261(1) of SPA.
- The council’s decision to give an acknowledgement notice under s.267 of SPA was one of many decisions it made during the IDAS process. The decision had an important consequence. The giving of the notice marked the end of the application stage of the IDAS process. The application, as a consequence, progressed to the next stage of IDAS, being the information and referral stage. During this stage of IDAS, an assessment manager may issue an information request to an applicant. The power to do so is contained in s.276 of SPA. The material before the court demonstrates the council issued an information request for Bigini’s development application on 3 June 2014. Mr Loos informed the court that the information request did not raise any issue with respect to the declaration given in Table H of Form 1. This was not challenged by the co-respondents.
- The central issue to be determined in this preliminary hearing is whether the application was properly made for the purpose of s.261 of SPA. The submission advanced on behalf of the co-respondents was to the effect that the development application was not properly made because: (1) owner’s consent was required for the making of the application; (2) Bigini did not have owner’s consent to the making of the application; and (3) it follows from (2) that the development application did not, and could not, comply with s.260(1)(e)(i) and (ii) of SPA.
- Before dealing with the co-respondents’ submission, it is necessary to deal with a threshold issue raised by Bigini and the council. They contend the court has no jurisdiction (in this appeal) to deal with the preliminary issues raised about owner’s consent, and whether the application was properly made. I agree with this submission.
- To succeed, the co-respondents need to go behind the declaration made by Bigini under s.260(1)(e)(ii) of SPA to examine its accuracy. Further, they also need to attack the council’s decision to accept the application as being properly made. This proceeding does not, in my view, provide the appropriate vehicle to examine contentions of this character.
- This is a court of statutory jurisdiction. Its jurisdiction in this appeal is derived from s.7 of the Planning and Environment Court Act 2016 and s.461(1)(a) of SPA. This provision of SPA creates an appeal right for an applicant, such as Bigini, against a decision by an assessment manager to refuse its development application. The appeal right created does not encompass a right to advance a collateral attack on an assessment manager’s decision to treat an application as a properly made application.
- Further, the appeal right does not, in my view, encompass a right of challenge to a declaration given by an applicant for the purposes of s.260(1)(e)(ii) of SPA.
- One vehicle that may be available to raise issues of this character is an Originating Application seeking declarations under s.11 of the Planning & Environment Court Act 2016. The co-respondents did not invite this court to order that the preliminary points proceed as if they were declarations sought by way of an Originating Application under s.11.
- If, contrary to my view, this proceeding is an appropriate vehicle to examine the preliminary issues raised by the co-respondents, I am not persuaded the points raised have merit for a number of reasons.
- As a starting point, it is correct to say that land owner’s consent was required for the making of the application, and the application as submitted did not comply with s.260(1)(e)(i) of SPA. I was not however persuaded that Bigini failed to obtain owner’s consent to the making of the application. So much is clear having regard to the evidence.
- The evidence before the court includes an affidavit of Mr Peden sworn 12 December 2018. He is a director of Kalbita and Bigini. In August 2011, he instructed a consultant to take all necessary steps to prepare and lodge the development application. The instructions given by him included consent on behalf of Kalbita to the making of the development application. This evidence was not challenged by the co-respondents and establishes, unequivocally, that Kalbita consented to the making of the application.
- When closely examined, the issue sought to be agitated by the co-respondents with respect to Lot 100 is not about owner’s consent. Rather, they seek to impugn the process adopted to create, and transfer Lot 100 to Kalbita. Prior to its creation in June 2011, Lot 100 was part of the common property controlled by Larnaca Court. By resolution recorded in the minutes of an extraordinary general meeting held on 25 August 2010, the body corporate resolved to transfer the area of Lot 100 to the now registered owner, Kalbita. The co-respondents do not accept this resolution is valid and, in turn, question the validity of the transfer in ownership to Kalbita.
- The difficulty for the co-respondents is that the validity of the resolution has already been the subject of litigation. The resolution of 25 August 2010 was the subject of a challenge before the Office of the Commissioner for Body Corporate and Community Management. The adjudicator held the resolution of 25 August 2010 was valid. The adjudicator’s decision was the subject of an appeal to QCAT. That appeal was unsuccessful. The decision of the adjudicator was upheld on appeal.
- This court has no power to go behind the decision of the adjudicator, nor the appeal court, to examine the validity of the resolution of 25 August 2010. Any question as to its validity has been asked and answered. It is a valid resolution.
- This difficulty for the co-respondents is not overcome by a change in emphasis. For example, the matter cannot be approached as if the issue they seek to raise is an attack on the contents of the freehold land register with respect to Lot 100, rather than an attack on the resolution of 25 August 2010. This court has no jurisdiction to examine the creation and registration of Lot 100 in the freehold land register. The registration of Lot 100 and the entry in the freehold land register for this lot must be treated as correct. The freehold land register confirms that Kalbita is the registered owner of Lot 100, who consents to the making of the application, and the continued pursuit of the application before this court.
- As to Lot 0, it has been assumed by the co-respondents that owner’s consent must be provided for this lot because it was included in the application. This assumption ignores that Lot 0 is in a different position to Lot 100. Whilst Lot 0 was included in the development application, it was included for access purposes. Access was, and is proposed to be obtained via an existing easement. Section 263(2) of SPA is relevant to such circumstances and provides:
“(2) Despite subsection (1) –
(a) to the extent the land the subject of the application has the benefit of an easement, and the development is not inconsistent with the terms of the easement, the consent of the owner of the servient tenement is not required;…”
- The co-respondents did not address s.263(2)(a) of SPA. They failed to establish that land owner’s consent was required for the making of the application notwithstanding this provision of SPA.
- If it is assumed that s.263(2)(a) of SPA does not apply to the circumstances here, and owner’s consent was required for Lot 0, the affidavit material establishes that consent was obtained by Bigini. The evidence includes a copy of a resolution carried on 30 September 2014 for Larnaca Court. It states:
“That Kalbita Pty Ltd, as owner of Lot 4 and Lot 100 in the scheme having given notice under Section 29 of the Body Corporate and Community Management Act (BCCM Act) of its intention to continue with the progressive development of the scheme by the subdivision of Lot 100 into, and construction of eight further lots, the Body Corporate execute the consent to development and reconfiguration in the form attached. Further that two members of the committee, one being Alec Peden be authorised to sign the consent on behalf of the body corporate. The owner of Lot 4 asks that the voting on this motion be decided by a poll.” (emphasis added)
- A copy of this resolution was provided to the council in October 2014, along with a letter dated 10 October 2014. The resolution post-dates the declaration given by Bigini in the completed Form 1, but reflects that the body corporate resolved to consent to the development application, and to execute a written consent in a specified form. The consent was provided to the council in a letter dated 10 October 2014.
- The co-respondents take issue with two matters arising from the resolution of the meeting of 30 September 2014, and the letter of 10 October 2014. They assert: (1) the consent provided to the council did not bear the seal of the body corporate; and (2) the consent provided to the council was not signed by two members of the committee as required by the resolution.
- The two matters raised by the co-respondents do not, in my view, detract from the plain words of the resolution of 30 September 2014. The resolution provides the body corporate consented to the development application before the court. The issues raised by the co-respondents attack the way in which that consent was communicated to the council by the letter dated 14 October 2014. These matters are technical, and directed at the form of the consent, rather than the substance of the consent. The issues of form raised by the co-respondents do not, in my view, prevail over the substance of the resolution wherein consent was given to the application over Lot 0.
- For the reasons given in paragraphs  to  above, I am satisfied Bigini has owner’s consent for Lot 100 and Lot 0 to the making of its application, contrary to the co-respondents’ contentions.
- I am also satisfied that the development application was properly made and correctly treated as such by the council in its acknowledgement notice given on 14 May 2014. The validity of this acknowledgement notice was not, in my view, affected by later events that occurred during the IDAS process. This included the council issuing a second acknowledgement notice for the application. It is necessary to deal with this aspect of the case in some detail.
- The council issued a second acknowledgment notice for the development application on 25 February 2015. The notice states that the application was properly made on 13 October 2014. The background to the notice is as follows.
- On 4 July 2014, nearly two months after the acknowledgement notice was given for the development application, and one month after the council had made an information request, Ms Ong contacted the council to raise two issues about the development application: (1) she asserted that owner’s consent had not been obtained by Bigini in respect of Lot 0; and (2) she asserted there was perceived impropriety surrounding the creation, and transfer of Lot 100 to the then registered owner, Kalbita.
- In response to the issues raised by Ms Ong, the council, as assessment manager, asked Bigini to provide evidence of land owner’s consent to the making of the development application. The evidence relied upon by Bigini in response to council’s request to prove owner’s consent comprised two documents, namely:
- (a)the completed Form 1, section 6, Table H; and
- (b)an email transmission dated 13 October 2014, attaching:
- (i)minutes of the extraordinary general meeting held on 30 September 2014 for Larnaca Court; and
- (ii)a letter dated 10 October 2014 signed on behalf of the body corporate for Larnaca Court Community Title Scheme 10647 advising it consented to the making of the town planning application over Lot 100 on SP227474.
- The evidence provided to the council in October 2014 with respect to owner’s consent does not make good on the declaration given by Bigini in Table H of Form 1. The declaration given by Bigini was, to the effect, that the owners of the land had given written consent to the making of the application. Whilst there is little doubt that Kalbita consented to the making of the application over Lot 100, no written evidence of its consent was provided to the council. Further, the written consent produced for Lot 0 post-dated the making of the application. The application was made to the council on 17 April 2014. The extraordinary general meeting of the body corporate for Larnaca Court (where consent to the making of the application was obtained) was held some six months later on 30 September 2017.
- The material before the court establishes that the council, with the benefit of the documents referred to in paragraph , reconsidered whether the application was a properly made application. It was so satisfied, and issued a second acknowledgement notice for the development application on 25 February 2017.
- That Bigini provided evidence of owner’s consent did not cause the application to return to the application stage of the IDAS process. It is during this stage that an assessment manager examines an application against ss.260 and 261 of SPA for the purposes of issuing an acknowledgment notice.
- In my view, the second acknowledgement notice represents a unilateral decision by the council to reconsider the application against ss.260 and 261 of SPA, with the benefit of the evidence about owner’s consent. Council, as assessment manager, did not have power under SPA to unilaterally decide to pursue this course. Nor did it have power under SPA to issue a fresh acknowledgement notice in such circumstances. This is unsurprising given:
- (a)SPA provides no guidance as to when the IDAS process stopped, and returned to the application stage; and
- (b)SPA provides no guidance as to the status of the acknowledgement notice dated 14 May 2014 and any steps undertaken in the IDAS process in reliance upon the existence of this document.
- The court raised these matters with Mr Loos and Mr Hastie. They could not refer the court to any provision of SPA that conferred a power upon the council to issue the second acknowledgement notice. In this context, it should be noted that no reliance was placed on any provision in Chapter 6, Part 6, Divisions 2 and 3 of SPA. Division 3 is relevant to changing development applications, and the effect those changes have on the IDAS process.
- Only one character of change to an application requires the IDAS process to stop. It is a change that engages s.355(2) of SPA.
- Section 355(2) of SPA is relevant to a circumstance where an application is changed, and the change is, inter alia, not a minor change. Where the provision is engaged, the IDAS process stops, and the changed application returns to the start of the acknowledgement period, where an assessment manager is obliged to reconsider the matters raised in ss.260 and 261 of SPA.
- It was not suggested that section 355(2) of SPA was engaged in the circumstances of this case. The evidence would not have supported such a contention. The primary evidence before the court is the correspondence sent on behalf of Bigini to the council providing evidence of owner’s consent. The correspondence did not suggest, either expressly or by implication, that the evidence was given to the council on the footing it was a change to the application. It was material provided to the council for the purposes of responding to an issue going to the merits of the application.
- Put simply, the council determined the application complied with s.260(1)(e)(ii) of SPA on 30 April 2014. This determination was based on the declaration given by Bigini about owner’s consent. The giving of the declaration meant the council had no choice but to reach the view it did about owner’s consent.
- Given there is no other non-compliance alleged by the co-respondents with s.260(1) and (3) of SPA, and given the declaration provided by Bigini about owner’s consent, I am satisfied the council was obliged to issue an acknowledgement notice for the application. It did so on 14 May 2014. That notice was validly given, and recorded the application as being properly made on 30 April 2014.
- The validity of the acknowledgement notice dated 14 May 2014 was not affected by the second acknowledgement notice issued by the council. Nor was the validity of the notice affected because Bigini gave a declaration under s.260(1)(e)(ii) of SPA, but did not have the written consent of the owner of Lot 100 or Lot 0. In my view, there is no provision of SPA, or relevant statutory context (including the purpose of SPA) that would require a different conclusion to be reached.
- In my view, this approach to the interpretation of SPA does not lead to an unforeseen outcome. The rationale for requiring the consent of the owner of land is to ensure a development application has utility, and the development proposed is not an academic exercise where council is put to considerable wasted effort and expense. Section 261(1)(e)(ii) of SPA contemplates that the giving of the declaration, rather than providing evidence of owner’s consent, is consistent with this rationale. This is in circumstances where:
- (a)there is no provision of SPA requiring an assessment manager to go behind a declaration given under s.260(1)(e)(ii) of SPA to test its veracity; and
- (b)s.587(2) of SPA made it an offence for an applicant to make misleading or false statements in an application of a material nature.
- The combination of s.260(1)(e)(ii) and s.587(2) of SPA, in my view, meant that the council was entitled in this case to rely upon the declaration given by Bigini about owner’s consent. That declaration is not treated as void ab initio if it is later found to be inaccurate, or false. If it were otherwise, it would have been a simple matter for the legislature to provide for this circumstance in SPA. It did not do so expressly. The gap in the legislation in this respect is not filled by relevant context in the Act.
- Accordingly, I am satisfied the preliminary issues raised in paragraphs 1, 2, 3, 4, 9 and 10 of a document titled “CO-RESPONDENTS’ CONSOLIDATED GROUNDS OF OBJECTION TO APPEAL No. 3882 of 2016 – submission 3” do not preclude this appeal from proceeding to a hearing on the merits. I am also satisfied these issues do not warrant refusal of Bigini’s development application.
- It is ordered that the appeal be listed for mention at 9:15am on 30 January 2019 for the purposes of making directions and orders about its future conduct. It is intended that the orders made will facilitate a hearing of the appeal for two days in the week of 25 February 2019. Subject to hearing from the parties, the disputed issues to be determined at the hearing will be limited to those paragraphs of the document referred to in paragraph  that are not the subject of determination in this preliminary hearing.
 Court document No 56.
 s.267(2) of SPA.
 s.267(3) of SPA.
 s.269 of SPA.
 See Perivall Pty Ltd v Rockhampton Regional Council  QPEC 46 (‘Perivall’) and McKean v Gold Coast City Council  QPEC 061. The reasoning in Perivall applies to SPA, mutatis mutandis.
 cf, Savage & Anor v Cairns Regional Council  QCA 103 , McMurdo JA.
 Compare with the test stated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 388-390 -.
 Petrie v Burnett Shire Council  QPELR 510, 511.
- Published Case Name:
Bigini Pty Ltd v Brisbane City Council & Ors
- Shortened Case Name:
Bigini Pty Ltd v Brisbane City Council & Ors
 QPEC 1
Williamson QC DCJ
16 Jan 2019