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Brassgrove KB Pty. Ltd. v Brisbane City Council[2019] QPEC 42

Brassgrove KB Pty. Ltd. v Brisbane City Council[2019] QPEC 42

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Brassgrove KB Pty Ltd v Brisbane City Council [2019] QPEC 42

PARTIES:

BRASSGROVE KB PTY LTD AS TRUSTEE FOR MARTHA KB TRUST

(Applicant)

v

BRISBANE CITY COUNCIL

(Respondent)

FILE NO/S:

551 of 2019

DIVISION:

Planning and Environment

PROCEEDING:

Originating Application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

3 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

19 and 20 June 2019 and further written submissions received on 9 July and 18 July 2019

JUDGE:

Kefford DCJ

ORDER:

The Application is dismissed.

CATCHWORDS:

PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – DECLARATORY PROCEEDING – where the Applicant’s development approval for demolition of a pre – 1947 house had lapsed – where the Applicant failed to make an application to extend the development application before the lapse – where the code with respect to demolition in the planning scheme had been materially amended since the approval was given – whether the court should excuse the failure to make an extension application – whether the court should order the demolition approval to be taken to be effective

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 49A

Planning Act 2016 (Qld), s 86, s 87

Planning and Environment Court Act 2016 (Qld), s 7, s 11, s 37

CASES:

Allianz Australia Insurance Limited v Mashaghati [2017] QCA 127, cited

Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, cited

Bass & Anor v Permanent Trustee Company Limited & Ors [1999] HCA 9; (1999) 198 CLR 334, considered

Macquarie Leisure Operations Limited v Gold Coast City Council & Ors [2007] QPEC 20; [2007] QPELR 418, approved

Peach v Brisbane City Council & Anor [2019] QPEC 41, approved

R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, cited

Room2Move.com Pty Ltd v Western Downs Regional Council [2019] QPEC 34, approved

Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53, considered

Walker v Noosa Shire Council [1983] 2 Qd R 86, considered

COUNSEL:

A Skoien for the Applicant

B Job QC for the Respondent

SOLICITORS:

McCarthy Durie Lawyers for the Applicant

City Legal – Brisbane City Council for the Respondent

TABLE OF CONTENTS

Introduction3
Relevant background3

What relief is sought?

4

The issues to be considered and the Applicant’s submissions

5

Does the Court have jurisdiction?

6

Should declarations (a), (b) and (c) be made?

9
Should the relief sought in paragraphs (d) and (e) be granted?10

Absent the relief, the multiple dwelling approval cannot be utilised

11

The Council was supportive of the judgment

12

The multiple dwelling approval envisages that demolition will occur

13

The multiple dwelling approval has not lapsed

15

The subject house is a concrete tile and timber house in an austerity style

15

The subject house is not “timber and tin”

19

Extensive modifications to the subject house compromise its traditional appearance

20

The Applicant has taken steps and incurred significant expense

24

The Applicant has incurred cost penalties from contractors engaged to commence the development works

26

The Applicant would be forced to incur a significant financial burden

26

If a request to extend the currency period had been made, it is likely to have been granted

26

Absence of substantial or unexplained delay

28

The Applicant has acted with reasonable expedition to rectify the situation

29

Combination of the grounds

30

Conclusion

30

Introduction

  1. [1]
    Martha KB Trust owns land at 28 Nellie Street, Camp Hill. It contains a pre-1947 detached house (“the subject house”).  On 8 September 2016, a development approval was granted for demolition of the subject house (“the demolition approval”).  It lapsed on 8 September 2018. 
  1. [2]
    On 28 November 2018, Brassgrove KB Pty Ltd as trustee of the Martha KB Trust (“the Applicant”) made a new development application for demolition approval.  It requested the development application be assessed against the superseded planning scheme.  Brisbane City Council (“the Council”) refused that request.  The Applicant then made a development application for demolition to be assessed against the current planning scheme, but suspended that application and commenced this proceeding. 
  1. [3]
    The Applicant seeks declarations and orders intended to re-enliven the lapsed demolition approval so it can demolish the subject house. Alternatively, the Applicant seeks to have the demolition approval revived so that it may apply to the Council for an extension of the currency period. The Council resists the relief sought.

Relevant background

  1. [4]
    On 14 April 2016, a development application was made for a preliminary approval for building work to facilitate demolition of the pre-1947 house at 28 Nellie Street, Camp Hill. At that time, version 2 of Brisbane City Plan 2014 (“City Plan”) was in force.
  1. [5]
    The development application only required code assessment. The Council received submissions opposing the proposed demolition.
  1. [6]
    The Council refused the development application on 7 June 2016. The Council’s decision was appealed to the Planning and Environment Court.
  1. [7]
    On 8 September 2016, the appeal was resolved by consent, with judgment given approving the development application (“the demolition approval”).  The demolition approval took effect that day.  It had a currency period of two years.
  1. [8]
    On 17 November 2016, a development application was made to facilitate the redevelopment of the subject land and adjoining land at 29 Grant Street for multiple dwellings. The development application sought a preliminary approval for partial demolition of the Grant Street house; a development permit for a material change of use for multiple dwellings; and a preliminary approval for building work for multiple dwellings.
  1. [9]
    Public notification of the multiple dwelling proposal was carried out between 17 May and 6 June 2017. Fifteen submissions were lodged in opposition to that development.
  1. [10]
    Council approved the development application and notified its decision by way of a decision notice dated 27 April 2018 (“the multiple dwelling approval”).
  1. [11]
    It is uncontested that the demolition approval lapsed on 8 September 2018.
  1. [12]
    On 28 November 2018, the Applicant made a new development application to the Council seeking a preliminary approval for demolition of the subject house. It requested the development application be assessed against the superseded planning scheme.  On 11 January 2019, the Council refused that request.
  1. [13]
    The Applicant also made a further development application for preliminary approval for demolition of the subject house. That application is assessable against the Council’s current planning scheme. On 17 January 2019, the Applicant suspended that development application.
  1. [14]
    On 18 February 2019, the Applicant commenced this proceeding.

What relief is sought?

  1. [15]
    The prayer for relief in the Originating Application records that the Applicant seeks the following relief:

“(a) a declaration, pursuant to section 11 of the PECA, that the building works the subject of the Development Approval, being the demolition (the “Demolition”) of a pre-1946 house (the “House”) on the subject land, did not substantially start within the currency period for the Demolition Development Approval (the “Currency Period”);

  1. a declaration, pursuant to section 11 of the PECA, that the Applicant failed to make an application under section 86 of the Planning Act 2016 (the “PA”), prior to the expiry of the Currency Period;
  2. a declaration, pursuant to section 11 of the PECA, that, as a result of the matters set out in paragraphs (a) and (b) above, the Demolition Development Approval lapsed, under 341 of the Sustainable Planning Act 2009 (the “SPA”) or section 85 of the PA, upon the expiry of the Currency Period;
  3. a declaration, pursuant to section 11 of the PECA, that:
  1. the non-compliance with section 341 of the SPA or section 85 of the PA occasioned by the failure to substantially start the Demolition within the Currency Period ought to be excused; and/or
  2. the non-compliance with section 86(1) of the PA occasioned by the failure to make an application under section 86 of the PA prior to the expiry of the Currency Period ought to be excused;
  1. an order, pursuant to section 11 of the PECA and/or section 37 of the PECA, that:
  1. the Demolition Development Approval be taken not to have lapsed and the Currency Period be extended, or taken to have been extended , until a date that provides the Applicant with a reasonable opportunity to obtain a development permit for the Demolition (consistent with the Demolition Development Approval) and start the Demolition; or
  2. the Demolition Development Approval be taken not to have lapsed and the Currency Period be extended, or taken to have been extended, until a date that provides the Applicant with a reasonable opportunity to make an application under section 86 of the PA for extension of the Currency Period
  1. such further or other orders as this Honour Court considers appropriate.”
  1. [16]
    In its Further Written Submissions delivered after the hearing, the Applicant indicates that it now only seeks the declarations set out in paragraphs (a) to (c) of the prayer for relief. It seeks consequential orders upon the making of declarations, or pursuant to s 37 of the Planning and Environment Court Act 2016 (Qld), in the nature of that referred to in paragraphs (d) and (e) of the prayer for relief.

The issues to be considered and the Applicant’s submissions

  1. [17]
    Ordinarily, a party seeking to invoke this Court’s declaratory jurisdiction is expected to assist the Court in at least three ways.
  1. [18]
    First, the party seeking relief should identify the jurisdictional source for the grant of the declaration. If the asserted jurisdiction arises under s 11 of the Planning and Environment Court Act 2016, the party should identify the relevant subsection of that provision.  Where required, a party should also make submissions as to how the declaration sought falls within the identified jurisdictional source. 
  1. [19]
    Second, the party seeking relief should assist the Court by identifying, with precision, the declaration sought. It is necessary to pay close attention to the form of proposed declarations.[1]  It is not sufficient to indicate in general terms that a declaration is sought and to avert broadly to aspects of its content.  The declaration should reflect the matter in issue in a concise and accurate way to establish conclusively the situation that exists between the parties.  The party seeking the declaration needs to persuade the Court that the subject declaration should be made.  Relevant to that question is whether the declaration is framed as a conclusive determination based on a concrete and established or agreed situation that quells a controversy and gives rise to a binding decision between the parties.[2]  Alternatively, the party seeking the declaration might demonstrate that there is some other utility to the grant of a declaration in the terms sought.
  1. [20]
    Third, the party seeking relief should demonstrate that it is appropriate that the Court make the declaration having regard to other factors that might influence the exercise of the discretion. Where a party raises discretionary grounds to justify or oppose the relief, it should identify the relevant evidence. Further, if there is conflicting evidence, the submissions should analyse the evidence and, where relevant, identify why the evidence relied on should be preferred to the contrary evidence.[3]
  1. [21]
    Here, the submissions advanced in support of the application for declaratory relief provided little assistance on the jurisdictional source for the grant of the declaration. Further, the Applicant brought no precision to the task of framing the declarations and consequential orders it sought. The Applicant apparently assumed that the final form of any declaratory relief and consequential orders might be something about which I would hear from the parties on the delivery of judgment. (The dangers of failing to attend to the discipline of drafting the form of declaratory relief is apparent from the outcomes in Rural Press Ltd v Australian Competition and Consumer Commission[4] and Bass & Anor v Permanent Trustee Company Limited & Ors[5]).  Further, as will be apparent from the following reasons, the assistance provided by the Applicant about the grounds on which it relied to justify the relief it sought also fell short of what is expected.

Does the Court have jurisdiction?

  1. [22]
    The Planning and Environment Court is a court of statutory jurisdiction. Section 7 of the Planning and Environment Court Act 2016 provides that the Court has jurisdiction given to it under any Act. 
  1. [23]
    In Australian Health Insurance Association Ltd v Esso Australia Pty Ltd[6], Chief Justice Black said:

“There is a distinction between the conferral of jurisdiction and the grant of a power.  Jurisdiction in this context means the authority a court has to decide a matter and power goes to the exercise of that authority.  Without authority there can be no valid exercise of the power.

It is of great importance that when the Parliament intends to confer jurisdiction on a court it should make its intention plain and an express referral to jurisdiction in the familiar terms employed in s 82ZM has this effect.  But desirable though such an unmistakable conferral of jurisdiction is, it cannot be the only way in which Parliament can express its intention that a court should have authority to decide a particular class of matter.  The question is one of construction.”

  1. [24]
    The Originating Application seeks declarations pursuant to s 11 of the Planning and Environment Court Act 2016 and orders pursuant to either s 11(4) or s 37 of the Planning and Environment Court Act 2016
  1. [25]
    Section 11 of the Planning and Environment Court Act 2016 is contained within Division 3 of Part 2, which deals with the Court’s declaratory jurisdiction.  It states:

11 General declaratory jurisdiction

  1. Any person may start a P&E Court proceeding seeking a declaration (a declaratory proceeding) about—
  1. a matter done, to be done or that should have been done for the Planning and Environment Court Act 2016 or the Planning Act 2016; or
  2. the interpretation of the Planning and Environment Court Act 2016 or the Planning Act 2016; or
  3. the lawfulness of land use or development under the Planning Act 2016; or
  4. the construction of a land use plan under the Airport Assets (Restructuring and Disposal) Act 2008 and the interpretation of chapter 3, part 1 of that Act; or
  5. the construction of the Brisbane port LUP under the Transport Infrastructure Act 1994.

Note

Under the Acts Interpretation Act 1954, section 7, a reference to an Act in this list of subject matter about which a declaration may be sought includes a reference to the statutory instruments made under the Act.

  1. However, a declaratory proceeding for a matter under the Planning Act, chapter 3, part 6, division 3 may be started only under section 12.
  2. Also, a person may not start a declaratory proceeding for a matter under the Planning Act, chapter 3, part 6, division 2.
  3. The P&E Court may also make an order about any declaration it makes.

Note

For a proceeding under this section in relation to a development approval that was a PDA development approval under the Economic Development Act 2012, see also section 51AJ(3) and (4) of that Act.”

  1. [26]
    Section 37 of the Planning and Environment Court Act 2016 is contained within Part 4 of the Planning and Environment Court Act 2016, which deals with powers and procedure.  It states:

37 Discretion to deal with noncompliance

  1. If the P&E Court finds there has been noncompliance with a provision of this Act or an enabling Act, the court may deal with the matter in the way it considers appropriate.
  2. Without limiting subsection (1) and to remove any doubt, it is declared that subsection (1)—
  1. applies for a development approval that has lapsed, or a development application that has lapsed or has not been properly made under the Planning Act; and
  2. is not limited to—
  1. circumstances in relation to a current P&E Court proceeding; or
  2. provisions under which there is a positive obligation to take particular action.
  1. In this section—

noncompliance, with a provision, includes—

  1. non-fulfilment of part or all of the terms of the provision; and
  2. a partial noncompliance with the provision.

provision includes a definition.

  1. [27]
    Schedule 1 of the Planning and Environment Court Act 2016 defines “P&E Court proceeding”, generally, to mean a proceeding before the P&E Court.
  1. [28]
    The Applicant did not identify the subsection of the provision on which it relies for the relief in paragraphs (a) to (d) of the prayer for relief. It also did not address whether the Court has jurisdiction to grant the relief it seeks in paragraph (e) of the prayer for relief absent a valid proceeding under s 11 (i.e. whether s 37 confers jurisdiction or only grants a power in a proceeding where jurisdiction is otherwise conferred). 
  1. [29]
    During oral submissions, I requested assistance about the Court’s jurisdiction. The Applicant requested leave to amend to the extent necessary and to deliver further written submissions. As with the original written submissions, the further written submissions did not address the asserted jurisdiction to grant the declarations. The only assistance provided by the Applicant was a brief comment in oral submissions that the declarations were sought under s 11(a) about “a matter done, to be done or that should have been done for this Act”. 
  1. [30]
    While it is not necessary for me to finally determine the issue, for the reasons outlined below, it seems to me that I have jurisdiction to determine the application for relief.
  1. [31]
    Under s 49A of the Acts Interpretation Act 1954 (Qld), if a provision of an Act, whether impliedly or by express implication, authorises a proceeding to be instituted in a particular court in relation to a matter, the provision is taken to confer jurisdiction in the matter on the court.  As such, this Court has jurisdiction to hear and determine a justiciable controversy about those matters listed in s 11 of the Planning and Environment Court Act 2016.
  1. [32]
    In my view, s 37 of the Planning and Environment Court Act 2016 also confers jurisdiction on the Planning and Environment Court.  It both grants a power (to deal with a noncompliance in the way it considers appropriate) and confers jurisdiction (to decide any question that is necessary or expedient to decide in connection with a noncompliance).  Although Division 2 of Part 4 of the Planning and Environment Court Act 2016 is headed “Powers”, the intention of Parliament to confer jurisdiction is made plain by s 37(2)(b).  The statement that the Court’s power is not limited to circumstances in relation to a current P&E Court proceeding contemplates that proceedings can be initiated for the purpose of dealing with the noncompliance. 
  1. [33]
    That interpretation is confirmed by the Explanatory Notes for the Planning and Environment Court Bill 2015, which state:

Clause 37 Discretion to deal with noncompliance

Clause 37 provides the Planning and Environment Court with broad discretionary powers to relieve against any non-compliance, partial non-compliance or non-fulfilment of any provision of the Bill or an enabling Act. The intent of this clause is to ensure a person’s rights to a hearing are not compromised on the basis of technicalities concerning processes.

Recent case law has identified issues with the current equivalent provision in SPA, section 440, and the transitional provision in section 820. It was held by the Planning and Environment Court that these provisions do not apply to matters of non-fulfilment, and it was unclear whether the term ‘provision’ also includes a definition. This clause aims to address these identified issues, to ensure the Planning and Environment Court has appropriate excusatory powers.

The term “provision” is intended to be interpreted broadly, includes a definition, and is not limited to circumstances where there is a positive obligation to take a particular action.

The clause clarifies that it applies to a development approval that has lapsed, or a development application that has lapsed or has not been properly made under the Planning Act. The intent is to include other matters that may not otherwise by valid, for example, timeframes that have not been complied with, fees that have not been paid, a change or mistake in relation to: ownership details; boundaries of land; an entity which should have issued a notice; provisions referred to in a development application or development approval under the Planning Bill 2015 or an approval or permit (howsoever called) granted under an enabling Act.

This clause enables the court to give relief in response to proceedings commenced for that purpose or in the context of other proceedings; and to give that relief notwithstanding any other provision of the Bill or an enabling Act, including provisions which would otherwise provide that an application had lapsed.

The court’s power is not restricted to proceedings before it. This allows access to the Planning and Environment Court for declarations and orders about procedural disputes which do not form part of wider proceedings.

The intent of the clause is that the Planning and Environment Court may deal with the matter in the way it considers appropriate. The inbuilt flexibility of this clause enables the parties to achieve a range of outcomes, premised on the position that legal technicality should not defeat appropriate development, unless in the court’s discretion there are reasons to do so.”

(emphasis added)

  1. [34]
    In this case, the Applicant submitted that the declarations are sought under s 11(a) of the Planning and Environment Court Act 2016.  The declarations sought in paragraphs (a), (b) and (c) of the prayer for relief are not framed as matters “done, to be done or that should have been done under the Planning Act 2019.  The Applicant did not address how the declarations fall within the scope of that provision. 
  1. [35]
    The relief sought in paragraphs (d) and (e) of the prayer for relief in the Originating Application is at the heart of the controversy between the parties. The relief is directed at a determination of whether the Court should exercise its discretion to declare that the demolition approval should be taken to be effective until a date that provides the Applicant with a reasonable opportunity to either demolish the subject house or to permit the Applicant to make an extension application. With respect to that controversy, jurisdiction is conferred on this Court either under s 11(1)(c) or s 37 of the Planning and Environment Court Act 2016.
  1. [36]
    The matters the subject of declarations (a) and (b) are factual matters antecedent to a noncompliance. They are matters that, at a practical level, led to the noncompliance. As such, they are sufficiently related to the justiciable controversy the subject of the prayer for relief in paragraphs (d) and (e) to form part of the matter in which jurisdiction is conferred on the Court. The declaration sought in paragraph (c) is similarly sufficiently related. It relates to a legal consequence that is said to follow from the matters the subject of paragraphs (a) and (b).
  1. [37]
    Accordingly, if I were inclined to grant relief, I would be satisfied that I have jurisdiction to do so.

Should declarations (a), (b) and (c) be made?

  1. [38]
    With respect to the first declaration, the Applicant did not identify how the declaration resolves a genuine matter of concern. It is undisputed that the demolition did not substantially start within the currency period. A declaration to this effect is unnecessary to quell any controversy.
  1. [39]
    It is difficult to see any other utility in making the first declaration. There was no obligation under the Sustainable Planning Act 2009 (Qld) to substantially start the demolition within the currency period.  There was also no obligation to do so under the Planning Act 2016.  The decision to pursue the development was a matter entirely within the landowner’s discretion, or such other entity to whom the landowner might grant rights of occupation.  The Applicant did not identify any consequence of legal significance said to attach to the declaration.  The Applicant did not identify how the declaration would have any impact on its present or potential rights in a real and pressing sense.  It did not explain why, absent the declaration, its practical affairs would be hampered in some significant respect.[7] 
  1. [40]
    In relation to the second declaration, it is undisputed that the Applicant failed to make an application under s 86 of the Planning Act 2016 (Qld) (“an extension application”).  As such, the second declaration would not quell any controversy.  There is also no apparent utility to the declaration.  A person with the benefit of a development approval is not obliged to make an extension application.  It can elect to allow its development approval to lapse without taking any steps to extend its currency.  Again, the Applicant did not identify any consequence of legal significance said to attach to the declaration. 
  1. [41]
    As for the third declaration, both parties accept that, by operation of the Planning Act 2016, the demolition approval has lapsed.[8]  The Applicant did not address the utility of making the declaration.  None is apparent.
  1. [42]
    Accordingly, I am not prepared to make the declarations sought in paragraphs (a), (b) and (c) of the prayer for relief of the Originating Application.

Should the relief sought in paragraphs (d) and (e) be granted?

  1. [43]
    The Court’s discretion to grant the relief under s 37 is broad and unfettered.  It must be exercised judicially. 
  1. [44]
    The effect of the relief sought by the Applicant is to revive the lapsed demolition approval and extend its currency period. The Applicant has not specified the length of the extension it seeks, other than by reference to “a reasonable opportunity” to obtain a development permit for the demolition[9] and start the demolition or to make an extension application.
  1. [45]
    The Applicant relies on a series of considerations that it submits individually, or collectively, justify the exercise of the discretion to grant the relief sought. They are:
  1. (a)
    absent an order from the Court, the multiple dwelling approval cannot be utilised;
  1. (b)
    the Council was supportive of the judgment of this Court that resulted in the demolition approval;
  1. (c)
    the multiple dwelling approval granted in April 2018 envisages that demolition will occur;
  1. (d)
    the multiple dwelling approval has not lapsed;
  1. (e)
    the house the subject of the demolition approval is a concrete tile and timber house in an austerity style;
  1. (f)
    the house is not “timber and tin” as described in the Traditional building character (demolition) overlay code in City Plan;
  1. (g)
    there have been extensive modifications made to the house over time that severely compromise any traditional appearance of the house;
  1. (h)
    the Applicant has already taken reasonable steps and has incurred significant expense in furthering the proposed development of the subject land to date, including costs incurred to obtain the demolition approval and the multiple dwelling approval;
  1. (i)
    the Applicant’s contractors have been engaged to commence the development works, including the demolition, but their engagement has now been suspended, with cost penalties incurred by the Applicant;
  1. the Applicant would be forced to incur a significant financial burden if the rights under the multiple dwelling approval had to be abandoned as a consequence of not being able to undertake the demolition in accordance with the demolition approval;
  2. if the Applicant had made an extension application prior to the expiry of the currency period, it is likely such request would have been granted, having regard to the matters listed in the Planning Act 2016 for the assessment of such a request;
  3. the Applicant has not itself been guilty of any substantial or unexplained delay in attempting to further the rights under the demolition approval; and
  4. the Applicant has acted with reasonable expedition in attempting to rectify the situation, including in respect of the making of a development application to re-enliven the demolition approval and the commencement of this proceeding.
  1. [46]
    The submissions provided on behalf of the Applicant did not address these grounds in any meaningful way. The submissions did not identify the evidence the Applicant relies on to establish many of the grounds. The submissions also did not explain why each ground, either individually or in combination with other grounds, provides a compelling basis to grant the relief sought.
  1. [47]
    Each of the grounds is considered below.

Absent the relief, the multiple dwelling approval cannot be utilised

  1. [48]
    The Applicant has not established this ground. It overstates the position.
  1. [49]
    The multiple dwelling approval cannot be implemented without demolition of the subject house. Demolition cannot be lawfully achieved absent a preliminary approval for building work for that aspect that is assessable against City Plan.  However, there is an entitlement to pursue a new development application for demolition approval.  The Applicant has made such an application.  Instead of pursuing it, the Applicant suspended its new development application.  It seeks to avoid the assessment of its application by seeking relief in this proceeding. 
  1. [50]
    Accordingly, the Applicant has not established that this ground warrants the grant of the relief it seeks.

The Council was supportive of the judgment

  1. [51]
    The Applicant submits that the Council’s consent to the judgment on 8 September 2016 demonstrates that the Council accepts the proposed demolition did not conflict with the Traditional building character (demolition) overlay code in force in 2016 (i.e. version 2). During oral submissions, the Applicant’s Counsel requested the Court draw an inference about the absence of conflict from the provision of consent by the Council.
  1. [52]
    This ground does not support a grant of the relief for the following reasons.
  1. [53]
    The Applicant ultimately conceded, in its Further Written Submissions, that the Council’s consent to the judgment is equally consistent with other scenarios. For example, the Council may have been advised by an expert, such as Mr Kennedy, that the house is an austerity style house and, as such, is not protected in the Low-medium density residential (2 or 3 storey mix) zone under version 2 of City Plan.  Equally, the Council might have formed the view that there were sufficient grounds to overcome any conflict. 
  1. [54]
    In its Further Written Submissions, the Applicant also conceded that the Council was under no evidentiary obligation to explain why it consented to the judgment having initially refused the development application in order to exclude an adverse inference.  The documents relied on by the Applicant to give rise to the inference did not form part of the affidavit material filed in accordance with the Court orders.  Rather, the Applicant tendered them on the first day of the hearing.  The Council had no opportunity to call evidence to address any inference that might arise from the documents.  In those circumstances, it is not appropriate to draw an inference adverse to the Council.
  1. [55]
    Further, and in any event, the Council’s past support of the demolition of the subject house is of little significance because there have been substantive amendments to City Plan in the intervening period. Mr Kennedy details the relevant differences between version 2 and version 14 of the Traditional building character (demolition) overlay code in his affidavit. Relevantly, overall outcome 2(a) has been amended to require protection of pre-1947 buildings that either “individually or collectively” contribute traditional character and traditional building character to areas within the Overlay.  Under overall outcome 2(d), houses are no longer required to form an “important” part of a streetscape established in 1946 or earlier.  Instead, such buildings are to be protected where they form part of a character streetscape comprising residential dwellings constructed before 1947 nearby in the street within the Overlay.  In addition, whilst it was previously the case that dwellings other than “timber and tin” architecture were to be protected where they were in the Character residential zone, that qualification as to zoning has been removed.  In its place, overall outcome 2(e) now seeks the protection of a pre-1947 building that reflects traditional building character that is other than timber and tin architecture.  Section 5.3.3 of City Plan has also been amended.  Previously, compliance with the code was achieved by demonstrating compliance with either the overall outcomes, or the performance outcomes or acceptable outcomes.  Now, s 5.3.3 requires compliance with the purpose, the overall outcomes, and the performance outcomes or acceptable outcomes. 
  1. [56]
    Having regard to the content of the amendments, I accept the Council’s submission that the amendments seek to strengthen character protection in parts of Brisbane City.

The multiple dwelling approval envisages that demolition will occur

  1. [57]
    The Applicant submits that in issuing the multiple dwelling approval, the Council necessarily accepted a planning outcome involving the demolition of the subject house, the partial demolition of the dwelling house on the adjoining land, and the construction and use of the proposed multiple dwellings on the subject land and the adjoining land.
  1. [58]
    The Applicant apparently relies on an affidavit of Mr Pietrobon to establish this matter. He is a director of Platinum Architectural Services Pty Ltd, which provided development consultancy services to the Applicant in relation to its proposed redevelopment of the subject land and 29 Grant Street.
  1. [59]
    In his affidavit, Mr Pietrobon says when the Applicant received the multiple dwelling approval, he believed it to incorporate the demolition approval. He also believed that the currency period for the multiple dwelling approval applied to all aspects of the development, including the demolition approval. This is not the case.
  1. [60]
    The multiple dwelling approval did not authorise (even impliedly) the carrying out of the demolition of the pre-1947 house at 28 Nellie Street, Camp Hill. It is apparent from the multiple dwelling approval itself that the only demolition it approves is the partial demolition of the pre-1947 dwelling house located at 29 Grant Street.
  1. [61]
    As I have noted in paragraph [49] above, the multiple dwelling approval cannot be implemented without demolition of the subject house.  For that demolition to lawfully occur, a preliminary approval for building work (assessable against City Plan 2014) must be obtained.  That is but one of a number of approvals and authorisations that are required for the successful construction, and subsequent occupation, of multiple dwellings on the subject land and 29 Grant Street.  For example, it is also necessary to obtain a development permit for building work to effect the demolition.  No such development permit has been obtained.
  1. [62]
    It has long been recognised that, when assessing a development application, a local government should not make its decision on an assumption about the likely fulfilment of other prerequisites (except perhaps in the case of a clear futility or where another approval is tainted with illegality). If other preconditions are not fulfilled, then the buildings simply will not be able to go ahead. As was observed by His Honour Justice Thomas in Walker v Noosa Shire Council:[10]

“… With increasing government controls it is commonplace for an applicant to require multiple consents from different authorities or from the same authority in different capacities.  With the exceptions I have already mentioned (illegality or obvious futility) it may be said that in general it is desirable that such applications be considered on their merits one at a time, and without undue speculation on the fate of other necessary applications.”

  1. [63]
    During cross-examination, Mr Pietrobon accepted that he is aware that a development approval can only give approval for the form of development the subject of the application. He knew that the development application that led to the multiple dwelling approval did not seek demolition of the pre-1947 house at 28 Nellie Street. As such, it could not approve it.
  1. [64]
    In its Further Written Submissions, the Applicant submits that the multiple dwelling application involved assessment of traditional building character issues.  It submits that, accordingly, the Court can be satisfied from the grant of the multiple dwelling approval in April 2018, the Council endorsed the performance of the overall development project (including the demolition of the subject house) as an appropriate planning outcome.  The Applicant does not point to any evidence to support its assertion.  Rather, it asserts that the chronology provided in the submissions reveals that the Council considered traditional building character issues during the assessment of the application for the multiple dwelling approval.  I disagree.  The chronology is little more than an index of the documents in the Application Book (Exhibit 1). 
  1. [65]
    The Applicant has not directed my attention to any particular parts of the documents referred to in the chronology. It footnotes approximately 150 pages of Exhibit 1 that correspond to the listed documents. The Applicant’s lack of assistance in this regard is disappointing. It affected the timely disposition of this proceeding. The impact on the efficient use of the Court’s resources is particularly troubling given I had previously raised my concerns in this regard with Mr Skoien during oral addresses before requesting further assistance.[11]
  1. [66]
    A review of the approximately 150 pages identified in the Applicant’s footnotes reveals the evidence does not support the Applicant’s assertion. The planning report that accompanied the development application for the multiple dwelling approval noted that the subject house “has been approved for demolition”.  This is unsurprising.  The existing demolition approval for the subject house was a matter that the Council was obliged to have regard to in the assessment of the application pursuant to s 314(3)(b) of the Sustainable Planning Act 2009 (Qld).  The planning report did not include any assessment of the demolition of the subject house.  It only purported to assess the proposed material change of use.  All references to traditional building character issues in the requests from the Council and information from the Applicant related to either the proposed partial demolition of the house at 29 Grant Street, or the design of the proposed multiple dwellings and the extent to which the design complemented traditional building character in the street. 
  1. [67]
    Further, the Applicant’s submission necessarily involves an inference that the Council could have rejected the development application for the multiple dwelling approval on the basis that demolition of the subject house conflicted with City Plan 2014. This does not withstand scrutiny. The approval for the demolition of the subject house was extant. The inference is also contrary to the long established principles in Walker v Noosa Shire Council[12] referred to above. 
  1. [68]
    I am not persuaded that this ground is made out.

The multiple dwelling approval has not lapsed

  1. [69]
    The Council does not dispute this. For the reasons provided in paragraphs [49], [61] and [62] above, I am not persuaded that this ground, on its own, is a compelling reason to grant the relief sought.

The subject house is a concrete tile and timber house in an austerity style

  1. [70]
    With respect to this issue, I had the benefit of evidence from heritage architects Mr McDonald and Mr Kennedy – the experts retained by the Applicant and the Council respectively.
  1. [71]
    There was no dispute between the experts that the subject house is not strictly a “timber and tin” Queenslander vernacular dwelling.  Mr Kennedy described the subject house as an “interwar ‘modern’ style house which fit into the other style category of the Traditional Building Character Planning Scheme Policy.”  He explains that although the subject house has an integrated front verandah, which is a feature found on “timber and tin” houses, it does not have a “timber and tin” type core.  Mr Kennedy opines it has a triple fronted hipped tile roof in keeping with the “modern” style, which some experts refer to as “Austerity style”.  Mr McDonald adopts such a description.  In a report prepared on 24 March 2016, he opined that the subject house is consistent in form, materials and detailing with “Austerity style” houses constructed in the inter-war period (circa late 1930s and early 1940s).
  1. [72]
    Having regard to the evidence of the heritage architects, I am satisfied that the subject house is a concrete tile and timber house in an austerity style.
  1. [73]
    The Applicant submits that, given the form and state of the house, there is no reason (in the public interest) why the demolition should not proceed. It says there is no support in the Traditional building character planning scheme policy for identification of the subject building as a traditional building. For reasons explained below, the evidence does not support these submissions.
  1. [74]
    The current Traditional building character (demolition) overlay code records that its purpose is to be achieved through the overall outcomes. In this case, overall outcomes (2)(a), (d) and (e) are potentially relevant. It is apparent from those overall outcomes that the starting point is an enquiry into whether there is a residential building, or part of a building, constructed in 1946 or earlier. Here, there is. As such, on its face the code requires an assessment of the proposed demolition of the subject house.
  1. [75]
    Overall outcomes (2)(a), (d) and (e) indicate that a residential building, or part of a building, constructed in 1946 or earlier is to be protected or retained if it:
  1. (a)
    either individually, or collectively with others, gives the area its traditional character and traditional building character; or
  1. (b)
    forms part of a character streetscape comprising residential dwellings constructed in 1946 or earlier nearby in the street within the Traditional building character overlay; or
  1. (c)
    reflects the traditional building character other than “timber and tin” architecture.
  1. [76]
    Performance outcome PO5 and acceptable outcome AO5 raise similar considerations.
  1. [77]
    Assessment against these benchmarks calls for an evaluative judgment about the character of the subject house. A note in the Traditional building character (demolition) overlay code indicates that the Traditional building character planning scheme policy provides guidance on traditional character and traditional building character.
  1. [78]
    Section 2.1 of the Traditional building character planning scheme policy states that the traditional character of areas and the traditional building character of buildings is a combination of one or more of the following elements:
  1. (a)
    traditional building form and roof styles;
  1. (b)
    traditional elements, detailing and materials;
  1. (c)
    traditional scale; and
  1. (d)
    traditional setting.
  1. [79]
    When cross-examining Mr Kennedy, Counsel for the Applicant focussed on s 2.3 of the policy.  That section provides guidance on traditional elements, detailing and materials.  In s 2.3(3), the policy refers to traditional character being derived from the relatively limited range of materials available at the time of construction, which provided a unifying theme of painted timber walls and corrugated steel and terracotta tile roofing.  Mr Kennedy explained that, in his view, this provision was referring to a category of house collectively described as “timber and tin” houses (with that collective description applied to even those with terracotta roof tiles).  He accepted that the subject house was not part of that category.  Section 2.3(4) of the policy recognises that houses that do not use those materials may have traditional building character.  The code refers to them collectively as “other than ‘timber and tin’ architecture”.  The examples given in s 2.3(4) are of other distinctive traditional building character forms such as Spanish mission.  Section 2.3(4) notes those other styles usually incorporate face brick or rendered walls on the exterior and have a base material of fibro, masonry or concrete with a tile or tin roof.  The subject house does not accord with that description either.  It does not follow that the subject house does not have traditional building character.  As I have already mentioned, s 2.1 of the policy states that traditional building character can involve one or more of the identified elements. 
  1. [80]
    Section 2.2 of the policy provides guidance on traditional building form and roof styles. Section 2.2(1) describes the predominant traditional building character, which is often referred to as the Queensland vernacular. Section 2.2(3) records that other traditional building character forms exhibit architectural influences on Brisbane’s residential design. The other forms occurred primarily during the inter-war period and are often influenced by, but are expressed not to be limited to, art deco, Spanish mission, Californian bungalow and Georgian. The subject house is not one of the listed styles. As I have said, it is in the Austerity style.
  1. [81]
    Although there is no reference to the Austerity style in the policy, Mr McDonald readily acknowledged during cross-examination that houses belonging within the Austerity style of architecture were at least as prevalent as other inter-war houses such as art deco, Spanish mission and the like.  He accepted that, although perhaps not as dominant in pre-1947 Brisbane, Austerity style houses were certainly a part of the urban landscape in sufficient numbers to attract the description of “traditional building character”.  He accepts that the explanations of traditional building character in the Traditional building character planning scheme policy is not to be interpreted as exclusively defining a form of traditional building character.  It should also be taken to allow for the inclusion of other forms of pre-1947 housing.  Mr McDonald accepts that part of the traditional building character of the Austerity style house is its triple-fronted form, being the “stepping” of facades facing Martha Street.  Mr Kennedy gave similar evidence about the traditional building character of the Austerity style of house.  He indicated that there were “a lot” of houses of this type built in the 1940s, and indeed some in the late 1930s.  He considered the style to be “more associated with the 40’s than the 50’s”.  He particularly noted the triple-frontage form of the subject house, and the triple-frontage hipped roof, which is the hallmark of houses of the Austerity style.  He explained that the function of the triple-frontage form was to open up the plan internally (rather than the traditional room on either side of a corridor).  That, he explained, was derived from a European form or style of functionalism.
  1. [82]
    For the reasons provided above, the Applicant has not persuaded me that there is no support in the Traditional building character planning scheme policy for identification of the subject house as a traditional building. To the contrary, it is apparent from the expert evidence that there is an arguable case that the current Traditional building character (demolition) overlay code[13] seeks to protect houses in the Austerity style constructed in 1946 or earlier. 
  1. [83]
    The potential character value of the subject house, and whether it requires protection, calls for an evaluative judgment about the merits of the proposed demolition. That decision is to be made after having carried out an assessment against version 14 of City Plan.
  1. [84]
    In this case, the Applicant seeks to avoid any such assessment by the assessment manager. As much is readily apparent from two matters. First, the Applicant has made a development application for demolition approval (assessable against version 14 of City Plan) but asked for the application to be suspended while it pursues this proceeding. Second, in this proceeding the Applicant urges the Court to assess the proposed demolition of the subject house against version 14 of City Plan, at least to the extent that it would involve an assessment against the current Traditional building character (demolition) overlay code. The Applicant invites the Court to find that demolition meets the requirements of that code. It submits that there is no basis for finding conflict with version 14 of City Plan.
  1. [85]
    Whether the subject house complies with the code requires an evaluative judgment about the merits of the proposed demolition. At the outset of the hearing, the Council voiced concerns about the appropriateness of the Court embarking on such an assessment. The Council was concerned that to do so would pre-empt the Council’s decision about the new development application made by the Applicant.[14]  The Council was concerned that the Court would effectively replace the Council as the original decision maker.  The Council submits the relief should be refused so that the Council can undertake a proper assessment under the current regime.  It submits that the change to the applicable planning regime in a manner that is central to the acceptability of the development is itself sufficient to demonstrate that the public interest strongly favours an exercise of discretion to refuse the relief sought. 
  1. [86]
    There is considerable force to the Council’s submission. Where there is a change to the town planning regime that relates to a fundamental aspect of the development the subject of a lapsed approval, that is an important factor that should bear upon the approach the Court should take. It is indicative of a town planning imperative for the development to be the subject of a fresh assessment and decision under the Planning Act 2016
  1. [87]
    The public interest in permitting an assessment manager to undertake the original merits assessment of a development where there have been fundamental changes to the planning regime is apparent from the legislation that provides the development assessment process in Queensland, the Planning Act 2016. The purpose of the Planning Act 2016 is to establish, amongst other things, an efficient, effective, transparent, and accountable system of development assessment.  The Act requires the fate of an application for demolition approval assessable against a planning scheme to be determined, in the first instance, by the local government as assessment manager.  The processes include the ability to seek further information from the applicant.  The Court does not have the benefit of such interlocutory processes to provide it with the same breadth and depth of knowledge an assessment manager could gather under the development assessment process.  The Court’s assessment and decision necessarily occurs in circumstances where the assessment is constrained by, and subject to, the exigencies of litigation.[15] 
  1. [88]
    Replacing the development assessment process provided for in the Planning Act 2016 with a determination by the Court also denies the parties access to other beneficial processes available during a development assessment under the Planning Act 2016.  Examples include the deemed approval of a code assessable application, the ability to make representations about changes to a matter in the decision during an appeal period, and the right to an appeal by way of hearing anew. 
  1. [89]
    Instead of being subjected to the development assessment process, the Applicant seeks to be placed in a better position than it would have been in had it adhered to the requirement to make an extension application prior to lapse of the development approval. It seeks to have its proposed demolition treated as acceptable under version 14 of City Plan. The Applicant was never previously entitled to that. The Applicant effectively seeks interference with an administrative decision on the merits by precluding the decision maker from ultimately making the decision it considers most appropriate in the circumstances.[16]  I am not satisfied that course is appropriate in this case for two reasons.
  1. [90]
    First, having regard to the evidence of the heritage architects, I am not satisfied that there is no basis for finding that the proposed demolition complies with the Traditional building character (demolition) overlay code. There is at least an arguable case of non-compliance. As much is apparent from the fact that there is a dispute between the heritage architects about whether demolition of the subject house would comply with acceptable outcome AO5, performance outcome PO5 and overall outcomes (2)(a), (d) and (e) of the code.
  1. [91]
    Second, in this case an assessment of the traditional building character of a pre-1947 house is at the core of any decision on an application for approval to demolish a pre-1947 house. It is not a matter of technicality, nor a peripheral detail about the development the subject of the application. That issue, in combination with the experts’ opinion that the house is in the Austerity style and the nature of the changes to City Plan, demonstrate a town planning imperative for the proposed demolition of the subject house to be the subject of a fresh assessment and decision under the Planning Act 2016.   
  1. [92]
    For the reasons provided above, I am not persuaded that this is a case where the relief sought by the Applicant could be ordered without detriment to the public interest intended to be served by the Council, as assessment manager, exercising the relevant statutory power to assess and decide an application for demolition assessable against version 14 of City Plan. As such, this ground does not support grant of the relief sought.

The subject house is not “timber and tin

  1. [93]
    Having regard to the evidence of the heritage architects referred to in paragraph [71] above, I am satisfied that the subject house is not “timber and tin” as described in the Traditional building character (demolition) overlay code in City Plan. 
  1. [94]
    For reasons provided above, it does not follow that the subject house does not enjoy protection under the current Traditional building character (demolition) overlay code. Whether it does or not is a matter that should be considered by the Council as assessment manager for the reasons already provided. Accordingly, I am not persuaded that this ground supports the grant of the relief sought.

Extensive modifications to the subject house compromise its traditional appearance

  1. [95]
    Both parties accept that there have been modifications to the subject house over the past 80 years or so. The modifications include:
  1. (a)
    the addition of a skillion-roofed patio to the Martha Street side with new front stairs and modern steel balustrades;
  1. (b)
    large two-storey, skillion-roofed additions to the Nellie Street and Martha Street sides;
  1. (c)
    a side addition and new modern stairs to the northern side; and
  1. (d)
    a garage (or enclosed shed) to the Martha Street side. 
  1. [96]
    At present, the subject house has concrete roof tiles. There is a dispute between the heritage architects about whether they are original.
  1. [97]
    In his report dated 24 March 2016, Mr McDonald expressed the view that the subject house had a “modern concrete tile roof” and that he was uncertain whether the original roof was corrugated steel.  In a subsequent affidavit sworn 29 April 2019, Mr McDonald changed his view.  He now says the subject house originally had corrugated steel roof sheeting that has been replaced with modern concrete roof tiles.  Mr McDonald’s affidavit does not disclose the reason for the change in his opinion, nor the basis for his most recently expressed view. 
  1. [98]
    During his oral evidence, Mr McDonald explained that his current opinion is based on his analysis of aerial photography. He says the light colour of the roof in the 1946 black and white aerial photograph demonstrates it was originally corrugated steel. He says darker roofs indicate the presence of either tile or painted corrugated iron.
  1. [99]
    Mr McDonald also opines that concrete roof tiles are a product that is modern or second half of the 20th Century.  During his examination in chief, Mr McDonald presented a document detailing the profile of a Tudor style roof tile manufactured by Monier.  He says the current roof tile has that same profile.  During cross-examination, Mr McDonald accepted that Monier first started making concrete roof tiles in Australia in 1940 and that the house was built around 1940 or 1941. 
  1. [100]
    In his affidavit sworn 18 April 2019, Mr Kennedy included a photo that he described as “Photo showing: the original main roof tiled”.  Mr Kennedy’s report did not otherwise express views about the original roof material.  This is unsurprising given, at the time Mr Kennedy swore his affidavit, Mr McDonald did not express any definitive opinion about the original roof. 
  1. [101]
    During the trial, Mr Kennedy’s evidence immediately followed the evidence of Mr McDonald.  Mr Kennedy opined that using 1946 aerial photographs to draw a conclusion about the original roof material is fraught with danger.  During cross-examination, Mr Kennedy provided a cogent explanation for this opinion.  He explained how, in his experience, tiled roofs can look white in the 1946 aerial photography and galvanised iron roofs can look dark.  The colouring can vary depending on the time of day the photo was taken and many other factors. 
  1. [102]
    Mr Kennedy was unable to assist the Court about the profile of the roof tile. During examination in chief, he frankly conceded that he had not closely inspected the profile of the roof tiles. Again, this is unsurprising. The first time it was suggested that the tiles were the Tudor style tile manufactured by Monier was during Mr McDonald’s oral evidence after lunch on the first day of the hearing.  Mr Kennedy had no forewarning of the evidence.  Neither he nor the Council was put on notice to investigate the issue.
  1. [103]
    Despite the lack of notice about the issue, the likelihood of the subject roof tile being original was explored at length during Mr Kennedy’s cross-examination on the afternoon of the first day of hearing. The relevant cross-examination included the following exchange: 

“You see, what I’m asking you to do is listen carefully and raise matters of significance, in your opinion as an expert, for her Honour’s assistance.  And you know the point that I’m asking you about.  And that is that a roof tile that looks like the roof tile that’s on the roof now is not consistent with a roof tile that would have been present on the house in pre-1946 character house?Yes, it could be.

Right?It could easily be the same tile, yes.

Could be if we rely upon your speculation   ?No, it’s not speculation.  I think that they exist.

Right?And it’s – there is documentary evidence that tile – concrete tiles existed – roof tiles existed before 1946. 

Now, the documentary evidence you refer to – what are you talking about?There’s – either magazines have information about concrete tiles.  There’s Miles Louis’ account of them in Melbourne and his encyclopaedic work on building materials in Australia, where he’s got a history of concrete tiles in Melbourne.  In   

Let’s get a bit closer to home?All right.

When you talk about magazines, obviously there are all sorts of magazines.  There’s equestrian, horse-riding, gymnastics.  But we’re talking about architecture, I take it?No, no.  The – the building – Building Journal of Queensland is one magazine.

Okay?But the – the one that – where it is for the – obviously, it’s doing a Trove search on – on the net.  And there was an article in 1931 and it was actually a liquidation of the Concrete Roofing Tile Limited at south Brisbane, which was quite an enormous   

What are you referring to now, Mr – you’re reading from something   ?I’m reading   

What are you reading from?I’m reading – you’re asking me some documentary evidence.  That’s what I have.

What are you reading from?It’s from the Telegraph.

Yes?Friday the 12th, June, 1931.

Yes?It’s an article.

Yes?Well, it’s a tender, actually, on a liquidation sale   

Yes?    of the Concrete Roofing Tile Limited in liquidation.  And there’s then a chimney and there’s approximately also 30,000 concrete tiles for sale. 

All right.  And   ?I suggest that’s a roofing tile company.

Sure.  And you’re saying this has something to do with the profile of the roofing tile they were producing;  is that right? Is that the – what you’re telling us?No.  I’m telling you there was concrete tiles around before 1946. 

Right.  Well, we know Mr McDonald said that Monier, for instance, was producing them in 1940?Nineteen-forty.

And you’d agree with that?I don’t know that.

You don’t know that?Nope. 

But you know that there was somebody producing, according to the Telegraph?Yes.

That’s the southeast Queensland newspaper, The Telegraph?It is.

A concrete tile manufacturing company?Yes.

You’re speculating?No.  No.  I would be – I think that a lot of them would have.  In the nineteen – in the 1940’s, on the austerity style houses – after 1936, 37, I think there was plenty.  There’s another documentary evidence saying – I found – was in The Daily Standard (Brisbane), where they were producing a draft standard specification for cement concrete roof tiles.

All right.  And again, the form that you’re talking about   ?I don’t know what the form.

All right.  But you can’t point us to any examples.  You can say you think there would be many?I think there would be, yes.

All right.  But again, you can’t point to any?I – I haven’t applied myself to finding any.

Well   ?But I know that I’ll find a whole lot tonight.

Well, you’re aware that all of the components, the materials, the form, of this house, were all the focus of this dispute between the parties in this proceeding?Well, I have no idea, because it was – I had no idea what Mr McDonald was basing his information – this Monier business is the first time I’ve seen it.  We were doing a joint report.  We may have discussed it, and we may have taken it further and done some more detailed research about this particular profile, but I didn’t see that as being important at all.”

  1. [104]
    After that exchange, Counsel for the Applicant suggested that the Court should be concerned about the evidence of Mr Kennedy. Mr Skoien foreshadowed a submission that Mr Kennedy had not been sufficiently frank with the Court. 
  1. [105]
    There are four observations I wish to make regarding the expert evidence about the original roof material.
  1. [106]
    First, the criticisms made of Mr Kennedy during the hearing were unfair. Mr Kennedy’s affidavit and the attached report were prepared at a time when Mr McDonald had expressed the view that he was uncertain about the original roof material.  There was nothing to put Mr Kennedy on notice that Mr McDonald would dispute his view that the roof was original.  Mr Kennedy’s report was appropriate in light of those circumstances.
  1. [107]
    Second, to the extent that I have reservations about the reliability of the expert evidence, they relate to the evidence of Mr McDonald.
  1. [108]
    As anticipated by the order of the Court, Mr McDonald’s affidavit was served as a response to the affidavit of Mr Kennedy.[17]  The affidavit exhibits Mr McDonald’s report dated 24 March 2016.  The body of the affidavit makes several references to that report, in each instance stating that his advice remains unchanged.  The body of the affidavit makes no reference to the fact that Mr McDonald does not maintain the opinion he expressed in his earlier report about the original roof material.  During cross-examination, Mr McDonald confirmed that his changed opinion was based on the roof colour in the aerial photograph and his knowledge about Monier roof tiles.  These matters were not referenced in his affidavit.  They were first revealed during the hearing.  As such, Mr McDonald’s affidavit does not disclose all material facts on which his opinion was based. 
  1. [109]
    Had Mr McDonald disclosed the basis of his opinions in his affidavit, Mr Kennedy (and the Council) would have been on notice to investigate the issue about the roof tiles more thoroughly, including by examining their profile. As is evident from the transcript, extracted in part only above, Mr McDonald’s failure resulted in unnecessary court time dedicated to this issue. These difficulties serve as a timely reminder of the importance of the rules regarding expert evidence, particularly those relating to the expert’s obligations.
  1. [110]
    Rule 32 of the Planning and Environment Court Rules 2018 requires an expert to prepare a written statement of the expert’s evidence for the hearing of a P&E Court proceeding.  Rule 33 confirms that r 428 of the Uniform Civil Procedure Rules 1999 applies to that statement of evidence.  Rule 34 of the Planning and Environment Court Rules 2018 requires the statement of evidence to be served on the other parties as directed by the Court.  Rule 428 of the Uniform Civil Procedure Rules 1999 requires an expert report to include, amongst other things, all material facts, whether written or oral, on which the report is based and references to any literature or other material relied on by the expert to prepare the report.  In combination, these Rules are directed at the just and expeditious resolution of the issues and avoiding undue delay.  They help avoid tactical surprise and facilitate an efficient trial in which the parties and the Court can concentrate upon the essential issues only.[18]
  1. [111]
    Third, there is no conclusive evidence about whether the concrete tiles are original or not. The evidence of Mr Kennedy extracted at paragraph [103] above causes me sufficient doubt about Mr McDonald’s opinion on the issue that I am not prepared to find that the tiles are not original.
  1. [112]
    Fourth, the dispute about the roof tiles provides a useful illustration of the pitfalls should the Court seek to supplant the role of the assessment manager by making a decision about compliance with a planning regime when the assessment manager has not undertaken the assessment. When presented with inconclusive evidence during an application process, the decision maker can request further information. The same opportunity is not present in litigation. As such, the Court should exercise caution before resolving a contest about compliance with an assessment benchmark where the assessment manager has not undertaken such an assessment.
  1. [113]
    Whether the agreed modifications to the subject house compromise its traditional appearance is a matter of dispute between the heritage architects. For the reasons already provided above, I am not persuaded that this is a case where the relief sought by the Applicant could be ordered without detriment to the public interest. It is in the public interest for the Council, as assessment manager, to exercise the relevant statutory power to assess and decide an application for demolition assessable against version 14 of City Plan. Accordingly, it is not necessary, nor appropriate, that I determine whether the modifications to the subject house compromise its traditional appearance, nor the overarching issue of compliance with version 14 of the Traditional building character (demolition) overlay code.[19]

The Applicant has taken steps and incurred significant expense

  1. [114]
    In its written submissions, the Applicant says it acts as trustee for the Martha KB Trust. It says the Trust was established by a syndicate to redevelop the subject land in combination with 29 Grant Street as an overall development project. It says the project involves demolition of the subject house, modification of the existing dwelling house on the adjoining land, construction of five multiple dwellings, and use of the modified dwelling house on the adjoining land as a sixth multiple dwelling. The Applicant submits that the Trust has incurred considerable expense in progressing the overall development project. The Applicant does not identify the evidence it relies on in support of this submission.[20]
  1. [115]
    The steps taken in pursuing the potential redevelopment of the subject land and the adjoining land are outlined in a Chronology in the Further Written Submissions of the Applicant. The Applicant submits they are extensive. I accept many steps have been taken since 26 March 2016.
  1. [116]
    The only evidence the Applicant placed before the Court about the financial cost incurred was in the affidavit of Mr Pietrobon. Mr Pietrobon said:

“I am informed by Mikko Allan Makelainen (Director of Applicant) and verily believe that, to date, the Applicant has expended considerable sums in progressing the development proposal.  More specifically, I am informed by Mikko Allan Makelainen (Director of the Applicant) and verily believe that, in addition to the costs associated with the acquisition of the subject land, the Applicant has spent approximately $287,943 by way of:

  1. $147,973 in consultants’ costs;
  2. $121,070 in holding costs (interest, rates, land tax); and
  3. $18,900 in Council fees.”
  1. [117]
    Mr Pietrobon’s affidavit did not attach documents substantiating these figures. However, it is apparent from documents tendered by the Council and the evidence of Mr Pietrobon during cross-examination that the expenses referred to by Mr Pietrobon include:
  1. (a)
    accountancy fees associated with the Applicant’s income tax returns over the years;
  1. (b)
    expenses incurred in the preparation for, and obtaining of, the demolition approval;
  1. (c)
    architectural and project management fees paid to Mr Pietrobon’s company in the order of at least $66,000.  As Mr Pietrobon acknowledged, there was a prospect that the Applicant would look to him, or his company, for recovery of those expenses given he is responsible for the lapse.  He has professional indemnity insurance to cater for that eventuality;
  1. (d)
    solicitors’ and barristers’ fees associated with attempting to revive the lapsed demolition approval;
  1. (e)
    expenses incurred in 2019, after Mr Pietrobon was aware that the demolition approval had lapsed;
  1. (f)
    maintenance costs associated with the subject house, including installation of air conditioning units and removal of possums;
  1. (g)
    considerable sums associated with otherwise unidentified “administrative services” or project management services paid to the two directors of the Applicant; and
  1. (h)
    holding costs incurred from the time of acquisition of the land and up to the time when it realised that it had allowed the approval to lapse.
  1. [118]
    Mr Pietrobon’s affidavit also creates a false impression of the financial impact on the Applicant as it does not disclose the extent of rental income received since 2016 for the subject house and the house at 29 Grant Street. During cross-examination, he accepted that there was such rental income.
  1. [119]
    Having regard to the evidence referred to in paragraphs [116] and [117] above, I accept that the Applicant has incurred expense pursuing its development intentions.  The actual extent of expense that relates to “furthering” development of the land is shrouded in uncertainty. 
  1. [120]
    Even if I were to accept that the Applicant has taken reasonable steps and has incurred significant expense in furthering the proposed development of the subject land to date, the Applicant has not explained why that justifies the grant of the relief sought. The Applicant also does not explain the basis of its submission that “it is quite apparent there will be quite considerable prejudice experienced by the Applicant (in terms of financial cost)” if the overall development project cannot proceed in accordance with the multiple dwelling approval due to the lapse of the demolition approval.  The nature of the financial prejudice is not identified.  It is difficult to understand how, on the Applicant’s case, there is any material prejudice when the lapse of the demolition approval does not preclude a further development application seeking the same approval and given it is the Applicant’s position in this proceeding that the proposed demolition complies with the current version of City Plan 2014.
  1. [121]
    Further, and in any event, at the time the Applicant elected to incur the expenses, there was no guaranteed outcome. The potential redevelopment was, at the very least, subject to obtaining several approvals from the Council. A letter of advice from Craig Ray & Associates, Solicitors, to Mr Pietrobon dated 5 April 2016 (which the Applicant’s Chronology describes as advice to the Applicant) described the subject house as “unlikely” to be protected.  It also advised that, based on the instructions provided, “the application for demolition of the house should be successful.”  It is clear from the letter that a degree of risk was involved.  The Applicant elected to pursue the development applications for the demolition approval and the multiple dwelling approval after that date. 
  1. [122]
    Accordingly, I am not persuaded that the steps taken and the expense incurred by the Applicant warrants the grant of the relief sought.

The Applicant has incurred cost penalties from contractors engaged to commence the development works

  1. [123]
    The Applicant has not referred to any evidence that supports this ground.
  1. [124]
    The evidence on this issue is limited to that given by Mr Pietrobon. He says:

“In reliance on the Demolition Development Approval and the Subsequent Combined Development Approval, the Applicant had selected contractors to commence works for the Proposed Development.  However, the engagement of those contractors has been deferred pending the outcome of this proceeding.”

  1. [125]
    In light of that evidence, and given the absence of any evidence as to cost penalties incurred, this ground is not open.

The Applicant would be forced to incur a significant financial burden

  1. [126]
    The Applicant’s submissions did not address this ground.
  1. [127]
    The Applicant did not explain why it would be forced to abandon its rights under the multiple dwelling approval if the relief is refused. As I have previously noted, the Applicant has made a further development application for demolition approval. That application is yet to be determined. As such, there is considerable tension between the Applicant’s assertion that it would be forced to abandon its rights and its position that the proposed demolition complies with the current version of City Plan 2014. The Applicant did not explain how these two positions could be reconciled.
  1. [128]
    The Applicant also did not identify the basis on which it asserts that it would be forced to incur a significant financial burden if the rights under the multiple dwelling approval had to be abandoned.
  1. [129]
    This ground has not been established.

If a request to extend the currency period had been made, it is likely to have been granted

  1. [130]
    The Applicant submits that, given the multiple dwelling approval envisages the demolition of the subject house, this Court can comfortably proceed on the basis that the Council would likely have acceded to a request for an extension of the currency period, had a request been made in conjunction with the application for the multiple dwelling approval. It submits the Council would have allowed the Applicant a uniform period of time to implement all aspects of its overall development project.
  1. [131]
    The Applicant relies on four things in support of its submissions. First, the planning legislation prescribes a default currency period of 24 months for building work.  Second, the multiple dwelling approval specified 48 months as the currency period for each of the preliminary approvals for building work under the multiple dwelling approval.  Third, the currency period for the building work was the same as the currency period nominated for the development permit for material change of use approved in the multiple dwelling approval.  Fourth, the Council recognised that overall development project is an acceptable outcome for the land and the locality and that the development could occur at any time until April 2022.  The Applicant invites the Court to draw this from the grant of the multiple dwelling approval.
  1. [132]
    There are two reasons I do not accept the Applicant’s submissions.
  1. [133]
    First, for reasons already provided above, I do not accept that the multiple dwelling approval envisages the demolition of the subject house. 
  1. [134]
    Second, I am not persuaded that the four matters relied on by the Applicant demonstrate that the Council would have acceded to a request for an extension of the currency period had one been made in conjunction with the development application for the multiple dwelling approval. This ground is no more than speculation.
  1. [135]
    Further, and in any event, I have doubts about the likely outcome of an extension application under s 86 of the Planning Act 2016 given its legislative purpose.  The underlying rationale for an extension application was well explained by His Honour Judge Williamson QC in Room2Move.com Pty Ltd v Western Downs Regional Council.[21]  His Honour observed:

“[122] Whilst the discretion to assess and decide an extension application is expressed in broad terms, the exercise of that discretion should, in my view, be informed by, inter alia, a point of context that can be easily overlooked. That context relates to the underlying rationale for an extension application.

[123] A development approval, and the right to carry out the assessable development it authorises is not a right that, once granted, can be exercised in perpetuity. It is a right that can be lost. It will be lost if the development approval lapses at the end of a defined currency period. A phrase that was coined many years ago to capture this legislative intention was: ‘use it, or lose it”. Once an approval lapses, a fresh application and new development approval is required where there remains an intention to proceed with the development. There is a reasonable expectation that the subsequent application and decision making process would involve considerable public and private expense.

[124] Section 86 of the PA, in my view, is clear recognition by the legislature of circumstances where no town planning purpose is served by development repeating the statutory assessment and decision making process simply because the approval which authorises it has, or will lapse. It is a vehicle that serves the wholesome purpose of avoiding the public and private expense associated with the development application and approval process, where, on balance, no town planning purpose would be served by it.

[125] This context informs the exercise of the discretion under s 87 of the PA. It invites the assessment manager (and this Court on appeal) to ask itself this question: is there a town planning imperative for the development, and its approval, to be the subject of a fresh assessment and decision under the PA?”

(emphasis added, references omitted)

  1. [136]
    Here, the amendments to the Traditional building character (demolition) overlay code, and their centrality to the acceptability of the proposed development the subject of the demolition approval, indicate there is a sound town planning purpose to be served by the Applicant repeating the statutory assessment and decision making process.  The public interest in the Applicant doing so is apparent from the evidence of community opposition to the demolition (and the subsequent multiple dwelling approval).  That opposition is a matter that would be relevant to an assessment of an extension application under s 87 of the Planning Act 2016.

Absence of substantial or unexplained delay

  1. [137]
    Another ground apparently relied on by the Applicant is that the Applicant has not itself been guilty of any substantial or unexplained delay in attempting to further the rights under the demolition approval.
  1. [138]
    The demolition approval was obtained in 2016. It had a two-year currency period. It was due to, and did, expire in September 2018.
  1. [139]
    There is no evidence that the Applicant took any steps to progress the demolition of the subject house until early 2018. To the contrary, Mr Pietrobon says there was no pressing need to undertake the demolition of the subject house.  He says tenants occupied the subject house and he considered there was no reason to ask them to vacate the premises until all arrangements had been made for carrying out the proposed multiple dwelling redevelopment.  Mr Pietrobon also says there was no reason to conduct the demolition if the multiple dwelling approval was not approved to enable the proposed development of the subject land and 29 Grant Street in combination.  This evidence suggests the Applicant made a commercial choice not to pursue the demolition.  It did so without paying sufficient regard to the fact its rights under the demolition approval might be lost if not acted on within two years.
  1. [140]
    The Applicant first took steps to further its rights under the demolition approval in early 2018. Mr Pietrobon says that from early 2018 he had been undertaking negotiations with licensed builders to carry out the demolition. He engaged a private certifier to provide development permits and certification of the demolition of the subject house, as well as the partial demolition of the house at 29 Grant Street and the building work associated with the multiple dwelling.
  1. [141]
    Email correspondence attached to Mr Pietrobon’s affidavit indicates that on 28 February 2018, prior to the lapse of the demolition approval, the private certifier requested two things: confirmation of the date the development approval took effect and a copy of the planning approval. The email stated “Upon receipt of the below items, we will then be in a position to process our approval.” 
  1. [142]
    There is no evidence of any response to this email until 9 November 2018. There was a number of email exchanges on that date. Having received a document provided by email early that morning, the private certifier again requested confirmation of the date the development approval took effect. Mr Pietrobon replied:

“I did that already in my previous email.

We undertook the town planning and I hereby again re-confirm that the approval has taken effect under City Plan 2014.”

  1. [143]
    The private certifier then responded:

“Are you able to confirm if you have applied for an EOT for the attached court order DA which relates to the demolition of the existing dwelling?

If so could you please email me a copy of the EOT approval letter.”

  1. [144]
    The reference to “EOT” was a reference to an extension of time, i.e. approval of an application under s 86 of the Planning Act 2016.
  1. [145]
    Mr Pietrobon responded that the demolition approval was still effective. It was not.
  1. [146]
    In his affidavit, Mr Pietrobon says he understood the information requested by the private certifier on 28 February 2018 was provided. He does not explain the basis of his understanding, nor when he understood the information to have been provided.
  1. [147]
    Apart from the engagement of the private certifier early in 2018, there is an absence of evidence of any material steps taken to progress the demolition approval. There is no evidence of any communication with the private certifier between February 2018 and November 2018. Even if it were assumed that Mr Pietrobon believed the requested information had been provided early in 2018, there is no evidence of Mr Pietrobon pursuing the private certifier to progress approval of the demolition or even enquiring about the reason for the delay.
  1. [148]
    The Applicant does not explain why, in the face of Mr Pietrobon’s evidence, the Court would be satisfied that the Applicant has not itself been guilty of any substantial or unexplained delay in attempting to further the rights under the demolition approval. Instead, the Applicant’s submissions focus on steps undertaken prior to the grant of the demolition approval and steps taken to obtain the multiple dwelling approval.
  1. [149]
    I am not persuaded that the steps referred to in the Applicant’s chronology demonstrate that there has been no substantial or unexplained delay by the Applicant in attempting to further its rights under the demolition approval. Implementation of the demolition approval was not contingent on the making of the development application for the multiple dwelling approval or the grant of that approval. Had the Applicant wished to further its rights under the demolition approval, it needed to obtain a development permit for the demolition from a private certifier. It did not do so, nor is there any evidence of concerted efforts to pursue such an approval prior to the lapse of the demolition approval.[22]

The Applicant has acted with reasonable expedition to rectify the situation

  1. [150]
    The affidavit of Mr Pietrobon explains the circumstances surrounding the lapse of the demolition approval and the Applicant’s response to that situation.
  1. [151]
    Mr Pietrobon has volunteered that the mistake was his, the reason for the mistake, and the actions taken upon discovering the mistake. He indicates that, had he been aware of the true state of affairs, he would have taken steps to avoid the current predicament. That is unsurprising. I accept that the predicament arises from the honest mistake of the Applicant’s consultants.
  1. [152]
    Upon being informed of the Council’s view that the demolition approval had lapsed, Mr Pietrobon apparently sought advice on 20 November 2018 about how to re-enliven the demolition approval. Mr Pietrobon does not attach a copy of the advice to his affidavit, nor depose to what advice, if any, he received. During cross-examination, Mr Pietrobon said he received advice from multiple sources, including his town planners. The town planners advised the Applicant to lodge a new development application for the demolition approval assessable against the superseded planning scheme.
  1. [153]
    After Mr Pietrobon sought advice, the Applicant did not pursue an extension application. Instead, as I have noted in paragraphs [12] to [14] above, it pursued a new development application for the demolition approval assessable against the superseded planning scheme and a new development application for demolition approval assessable against the current planning scheme (which application it sought to have suspended).  It also commenced this proceeding.  There is no evidence that the Applicant has prepared an extension application.  It does not specify the time it seeks to attend to that should the relief be granted.
  1. [154]
    The Council does not contest that the Applicant has acted with reasonable expedition in attempting to rectify the situation, including in respect of the making of a development application to re-enliven the demolition approval and the commencement of this proceeding. Nevertheless, I do not consider this a compelling ground justifying grant of the relief sought given the changes to City Plan and the existence of an arguable case that those amendments materially impact on the acceptability of the proposed development.

Combination of the grounds

  1. [155]
    Relief under s 37 of the Planning Act 2016 is discretionary.  The Court is required to balance competing considerations.  The Applicant’s situation is unfortunate.  However, its interests are not the only interests to consider.  The Council and the community also have an interest in the outcome.
  1. [156]
    In this case, the combined force of those grounds established by the Applicant does not justify the grant of the relief sought. They are insufficient to overcome the sound town planning purpose, and public interest, served by the Applicant repeating the statutory assessment and decision-making process with respect to the proposed demolition. 

Conclusion

  1. [157]
    For the reasons provided above, the Application is dismissed.

Footnotes

[1] Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53, 91 [90] and [91].

[2] Bass & Anor v Permanent Trustee Company Limited & Ors [1999] HCA 9; (1999) 198 CLR 334, 355-7 [45]-[49].

[3]  His Honour Judge Williamson outlined similar expectations of assistance in Peach v Brisbane City Council & Anor [2019] QPEC 41, [72].  I agree with his observations.

[4]  [2003] HCA 75; (2003) 216 CLR 53, 91 [90] and [91].

[5]  [1999] HCA 9; (1999) 198 CLR 334, 355-7 [45]-[49].

[6]  (1993) 41 FCR 450, 459-60.

[7] Bass & Anor v Permanent Trustee Company Limited & Ors [1999] HCA 9; (1999) 198 CLR 334, 355-7 [45]-[49].

[8]  If the Applicant had made such an application, a declaration could have been readily framed in a manner that was within the court’s jurisdiction under s 11(1)(a), namely a declaration that the extension application should have been made prior to the date on which the application lapsed.

[9]  This development permit would be obtained from a private certifier and would not require any further approval from the Council.

[10]  [1983] 2 Qd R 86, 90.

[11]  T2-51/L21 – T2-52/L5.

[12]  [1983] 2 Qd R 86.

[13]  Version 14.

[14]  It is undesirable that the Applicant placed the Council in a position that invited it taking a position with respect to compliance - see the observations of the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35-6.

[15]  This Court has previously observed that such matters bear upon the approach this Court should take in dealing with a matter that has not been subject to assessment by an assessment manager in Macquarie Leisure Operations Limited v Gold Coast City Council & Ors [2007] QPEC 20; [2007] QPELR 418, 422-3 [29]-[32].

[16]  Such an approach was discouraged by the High Court in Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1.

[17]  Although Mr McDonald’s affidavit was not served within the time specified, its late delivery is explicable by the late delivery of the Council’s affidavit material, being the affidavit of Mr Kennedy, to which Mr McDonald’s affidavit was responding.

[18]  See Allianz Australia Insurance Limited v Mashaghati [2017] QCA 127, per Sofronoff P.

[19] Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 23 (per Mason CJ).

[20]  Mr Pietrobon gave the only evidence about the establishment of the Martha KB Trust and its purpose.  The evidence was given in response to questions asked of him by Mr Skoien during re-examination.  Mr Skoien did not establish the basis for Mr Pietrobon’s knowledge.  No documents about the trust and its purpose were put before me.  Nevertheless, for the purpose of this proceeding, I am prepared to accept the submissions about the establishment of the trust.

[21]  [2019] QPEC 34.

[22]  See paragraphs [140] to [147] above.

Close

Editorial Notes

  • Published Case Name:

    Brassgrove KB Pty. Ltd. v Brisbane City Council

  • Shortened Case Name:

    Brassgrove KB Pty. Ltd. v Brisbane City Council

  • MNC:

    [2019] QPEC 42

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    03 Sep 2019

Appeal Status

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

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