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- Unreported Judgment
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Hemmant Property Group Pty Ltd v Brisbane City Council & Another  QPEC 6
HEMMANT PROPERTY GROUP PTY LTD
BRISBANE CITY COUNCIL
Planning and Environment
Hearing of a preliminary matter
Planning and Environment Court of Queensland, Brisbane
25 February 2020 (ex-tempore)
25 February 2020
RS Jones DCJ
Mr D O'Brien QC with Ms K Buckley the appellant
Mr A Skoien for the respondent
Gadens Lawyers for the appellant
City Legal – Brisbane City Council for the respondent
-  This proceeding is concerned with the determination of a preliminary point listed for hearing by Judge Everson. The preliminary point is as follows:
Having regard to the necessity for the construction of part of Burnby Road is the appeal a clear futility?
- At the outset, the issue of which party bore the onus was raised. Consistent with the observations of counsel for both sides, it is unnecessary for me to determine that point because, even if the onus were to lay with Hemmant Property Proprietary Limited, I am satisfied that the appropriate conclusion is that insofar as the so-called preliminary point is concerned, the issue concerning the construction of part of the unformed section of Burnby Road does not involve a clear futility.
- This issue comes about as a consequence of Hemmant Proprietary Limited’s appeal against the council’s refusal of a development application which, inter alia involved a development permit for a material change of use for a transport depot involving storage and distribution of vehicles associated with port operations, together with the development application for a preliminary approval pursuant to section 241 of the Sustainable Planning Act 2009 for certain building works. I should note here that the application was made under the Sustainable Planning Act, and it is common ground that the disposal of the merits will be dealt with in accordance with the provisions of that legislation, which, of course, has since been replaced by the Planning Act 2016.
- In the respondents reasons for refusal, the issues in the appeal, apart from involving the more general or typical form of town planning issues, there are a number of specific matters raised including flooding, environmental impacts, stormwater impacts and traffic impacts. Of particular significance in that regard in paragraphs 6 and 7 of the consolidated reasons it is said:
The proposed development would fail to adequately cater for vehicle traffic associated with the proposed transport depot use, would fail to maintain safety and efficiency of the road network for vehicles and pedestrians and would result in significant adverse impacts in conflict with the following provisions of City Plan 2014 enforced at the relevant date.
- Thereafter, a number of specific outcomes and other provisions of the planning scheme are identified. In paragraph 7 it is then said:
The proposed development does not have adequate site access, as it relies on the construction of an unconstructed part of Burnby Road. The council has no intention of constructing this part of Burnby Road, and furthermore the council would not provide its consent for the appellant or any other third party to construct this part of Burnby Road.
- On 23 August 2019, solicitors for Hemmant Property wrote to the council, and after referring to some comments made by Judge Everson, the following question was asked:
While the council has not identified the need to construct part of Burnby Road to access the development as an issue in the appeal, in response to the comments made by his Honour about access from Burnby Road, we have instructions that our client will consent to a condition of approval requiring the construction at its cost of the unconstructed part of Burnby Road required to provide access to the development.
- That elicited a response from the council which relevantly said:
In response, I confirm that the council would not consent to a condition of approval requiring the construction of the unconstructed part of Burnby Road. Furthermore, I also confirm that the council (1) would not provide its consent for your client or another third party to construct the unconstructed part of Burnby Road and (2) there’s no intention of constructing the unconstructed part of Burnby Road itself.
- There, of course, is no suggestion that the council would be required to construct that part of the unconstructed part of Burnby Road, Hemmant Property, through its solicitors, having identified that it would bear those costs. Burnby Road is a gazetted road which, relevant to this proceeding, is unformed, according to Mr Skoien, counsel for the council, for a distance of a few hundred metres. In this context I would refer to exhibits 1 and 2, which were tendered during the course of this proceeding.
- The need to make that part of Burnby Road trafficable is that, under the development application, the proposed development would involve the storage of cars brought to and from the subject land by heavy vehicles. The principal access, excluding staff access and emergency access, would be via an internal road connected to Burnby Road to the east. Access for staff would predominantly be via the Hemmant Tingalpa Road to the west, and emergency access via Ragnor Street to the south. The unformed part of Burnby Road forms a part of the necessary link between the formed portions of Ragnor Road and the unformed part of Burnby Road.
- As I have said, Hemmant Property has made it clear that it will be bear all the costs associated with the upgrading of the necessary section of Burnby Road. Nonetheless, the council has maintained up until today its position that I will not consent to any works, being carried out, on that section of the road. It, of course, must be recognised that upon that section of the road being opened and made trafficable, the council would thereafter bear the burden of – the ongoing control and maintenance of that road.
- In this proceeding, I was not taken to any reasons underpinning the decision to be made by the council. During submissions I was referred to the presumption of regularity stated in the Minister for Natural Resources v New South Wales Aboriginal Land Council  9 NSWLR 154 where, at pages 164 and 165 it was said, after referring to a number of authorities:
Where acts of an official will require the concurrence of official persons, a presumption arises in favour of their due execution. In these cases, the ordinary rule is –
going on –
everything is presumed to be rightly and duly performed until the contrary is shown.
- That presumption of regularity is uncontroversial, but having said that, in my view, plays no meaningful part in determining the outcome of this proceeding.
- In essence, the positions of the parties can be stated, albeit somewhat crudely, as follows. As far as the council is concerned, even if Hemmant Property succeeded in respect of every merit point or issue raised in the appeal, that is rebutted all the grounds for refusal, the appeal, nonetheless, would have no real benefit or be of any particular use and this development could not proceed because of the council’s position concerning the upgrading of that section of the road.
- On the other hand, Hemmant Property says that that position is misconceived, as what would in reality occur is that if that company were to succeed in respect of the relevant merit points or succeed to such an extend as to warrant approval, subject to a condition requiring it to upgrade the road at its expense, what would then occur is that the council would then be required to properly and reasonably consider an application for written approval to carry out the necessary works.
- Under the City of Brisbane Act 2010 the relevant section of Burnby Road could be described as an area of land that is dedicated for public use as a road, but is as yet unconstructed or formed. Pursuant to section 66 of the City of Brisbane Act, the council has control of all roads in Brisbane, including the power to be able to construct, maintain and improve roads within its road networks.
- Section 82 deals with, in particular, unauthorised works on roads. Pursuant to subsection (2) a person must not without lawful excuse, including under another Act, by way of example, or with the written – or without the written approval of the council, carry out works on a road or interfere with a road or its operation. A lawful excuse would, of course, include things such as extraordinary emergency, etcetera. Thereafter it is prescribed that a person who carries out works or interferes with a road or its operation in the absence of written approval or lawful excuse is subject to a penalty. Pursuant to section 82, subsection (4), the approval to carry out such works may be subject to conditions as decided by the council.
- The need for written approval, of course, as is contemplated by the power to impose conditions requires that there be a form of application for such written approval. No such application for approval has been made to date. What has happened – and this was candidly conceded by Mr Skoien, is that the council has decided, in effect, to pre-emptively decide what would happen if an application to carry out works was made. In other words, “Don’t bother, because you will not succeed”.
- There has been no suggestion that there are any physical constraints associated with road construction that would make a condition requiring roadworks a futility, instead the council’s position, as articulated in paragraph 3.1 of Mr Skoien’s written submissions in the following terms:
In summary, it is submitted that the Court would conclude that there is an absence of any real utility in the appeal, given the absence of any real prospect that the proposed development could be undertaken. There is a condition precedent to the carrying out of the propose development (being the consent of council to performance) [sic] (of roadworks in the unformed part of Burnby Road) and there is no real prospect (as compared to a fanciful prospect or hope) that the condition precedent would be satisfied.
- In reality, the council’s position is that it has predetermined the outcome of a yet to be made application to carry out roadworks without any consideration of the merit and without any reasons for that position being given. This, of course, in my view, amounts to a course of conduct involving an unacceptable interference with the administration decision-making process of deciding applications on their true merits.
- I was referred to a number of cases by Mr Skoien. I do not intend to deal with all of them, but will make comment on some of the cases upon which particular emphasis was made. The first was the case of Knox & Anor v Brisbane City Council 31 LGRA 108. The relevant passages are set out within the judgment, but one has only – need have regard to the headnote to note that this case can be readily distinguished. Under the headnotes, it is said:
There is nothing to suggest that the respondent local authority proposes to upgrade or seal access streets. The Court has no power to direct or order the local authority to do such work. Under the City of Brisbane and Town Planning Act 1964-74, the Court could not impose a condition as to forming and sealing a street unless the local authority ordinances prescribed that the local authority could lawfully so require, or unless the requirements of the condition were agreed upon by the local authority and the appellants.
- As I have said, that case can be readily distinguished. In this case, there is no suggestion of a condition being – of any such condition being imposed on the council. In reality, in the event that Hemmant Property were otherwise successful, it will be asked to properly consider an application to carry out roadworks on the relevant section of Burnby Road. To a similar effect is the case of Mascotmont Proprietary Limited v the Bundaberg City Council (1997) QPELR 350, where at 352 it was said by his Honour, Judge Quirk:
I can understand the appellant’s frustration at this, particularly as it is prepared to meet any costs associated with the mode of connection of this proposal suggested by its engineer. The difficulty is that the proposed mode of connection, while practicable in an engineering sense, is not one which the respondent is prepared to accept. There is, for the appellant, the added difficulty that if I accede to its proposal, I will then, in fact, be seeking to direct the respondent to carry out work external to the site, which is not – which it is not willing to perform. It is well settled that this would be beyond the Court’s power.
- What was involved there, as I understand it, was a connection to the council’s sewerage connection. His Honour cited for authority, after that particular passage, the case of Harderan Proprietary Limited v the Logan City Council  1 Qd R 524, a case I will refer to in a moment. Before doing so, I would refer to the case of Wroxall Investments Pty Ltd v Cairns Regional Council  QPEC 92. In that particular case, his Honour Judge Robin QC at paragraph – at the end of paragraph 34 said:
It seems to me a rather different notion to argue that, given the state of the law as interpreted authoritatively in Harderan, the Court is obliged to determine this appeal on the basis that the council cannot be compelled by imposition of a condition on a development approval in the appellant’s favour or on any other theory to accept or permit work on its road reserve which it does not want.
- Of course, here, as I have already said, it would appear there that his Honour was agreeing with written submissions made on behalf of the council, which are set out at page 15 of that judgment and which concluded by saying:
In short, the through road connection to Marlon Drive comprises external works which are not necessary for the development. In the absence of the council agreeing to such, the council cannot (and should not) impose a condition in compelling the council to accept such works.
- Again, the decision of the then Full Court in Harderan would seem to be of particular force in the reasoning of his Honour. Turning, then, to Harderan, one has only have to regard to the headnote where it is said that the power of the then local government Court to allow an appeal subject to conditions did not confer upon the Court the jurisdiction to order a local authority to carry out roadworks or the jurisdiction to impose a condition which would impose upon an applicant an obligation to contribute in the event of a local authority performing work which the Court could not order or require the local authority to perform.
- Here, as I have already emphasised, should Hemmant Property succeed, this would not result in imposing upon the council a condition, in effect, to adopt the wording use of his Honour in Wroxall, to accept or permit work on its road reserve which it did not want. Here there would be no compulsion for it to accept or permit road on the road reserve. What would though be required would be for it to give proper consideration to and determine, according to law, any application made by Hemmant Properties to carry out such works. That would of course require any such application to be properly determined on its merits.
- Of course, it may well be that in that the council maintains its current position and has every good reason to do so. In that case, in all likelihood the proposed development would not succeed. On the other hand, though, should it be the case that the council maintain its present position without any justification or reasonable reasons for doing so, then, of course, that decision might be open for review in the Supreme Court.
- Particular emphasis was placed on the decision of Walker v The Noosa Shire Council, a decision of the then Full Court  2 Qd R 86 on the part of Hemmant Properties. In that case, at pages 88 to 89 when it was relevantly said:
The new ground, upon which His Honour eventually based his dismissal of the appeal, was the fact that the appellants had not at the time of hearing obtained a permission of the appropriate authority to erect the proposed ramps and structures on the road reserve. His Honour concluded his judgment in these terms:
and this is the quote within the quote:
Whilst I might otherwise have been prepared to permit the erection of each of the proposed dwelling houses on each of the relevant lots, the use of the road reserve is in my view a relevant consideration in determining whether permission should be granted. In the absence of any consent from the appropriate body or corporation I am of the view that permission should not be granted as in the absence of such permission the proposed method of construction as envisaged by the engineers is not practicable. For the above reasons each appeal is dismissed.
The substantive decision of the Full Court then continues:
This was the only ground given for dismissal of the appeals, and from His Honour’s judgment as a whole it seems clear that but for this consideration the appeals would have been allowed. It is difficult to see why His Honour did not allow the appeals upon the condition that the consent of the appropriate authorities would be obtained in respect of the proposed structures in the road reserve area. Whilst one may suspect that there would be considerable difficulty in obtaining the necessary approvals, that issue was not fully litigated. The ownership and control of the road was not established by evidence, and this of course would be the starting point for any examination of the question whether such approvals are impossible to obtain. It is true that some evidence was directed to the question, principally from a Mr Turner, a council engineer, who said that he would recommend to the Council that no such construction be permitted in the road reserve area. But this is by no means conclusive of the issue.
The fact that a particular application is a clear futility, or is tainted with illegality that cannot be cured may be a ground for refusing an application. But in my opinion the council did not establish such a ground. Under the present decision, this issue has been prejudged instead of being allowed to take its course and abide the decision of the appropriate authority or authorities.
The Court then went on to say:
But in the present case it is not appropriate to decide the order in which the approvals must be obtained, or to pre-empt other applications by assuming that they will fail.
- Here, of course, we know full well who owns the relevant road reserve and who is responsible for its control. We also know, by reference to the council’s present position, that it may well be the case that it will be difficult of Hemmant Properties to succeed in any application, but it is equally clear, in my view, that the basis for the council’s position has not been fully litigated. As I have said, no reasons have been given revealing why it was, or why it is, that the council has reached that conclusion or position.
- In the even that Hemmant Properties were to convince the Court that the appeal ought be allowed, subject to a condition requiring it to, at its expense, upgrade the relevant section of Burnby Road, there would be, in my opinion, no reason why this Court could not allow the appeal subject to such a condition, and that would include, of course, requiring it to get the consent of the council to carry out the necessary roadworks.
- On the limited material before me, it would be wrong to proceed on the basis that any application would fail. To adopt the terminology in Walker, it would be inappropriate to pre-empt the outcome of a properly made and a properly considered application by proceeding on the basis, or the assumption, that it would, in all likelihood, fail. Accordingly, I have concluded that in respect of this point, the issue concerning the construction of the relevant unformed part of Burnby Road would not result in a clear futility.
- I would conclude by placing on the record that nothing I have said ought to be taken as expressing a view one way or another about the overall merits of the appeal or as to the likely outcome of any application to the council to carry out roadworks in the event that that situation should arise in the future.
- Published Case Name:
Hemmant Property Group Pty Ltd v Brisbane City Council & Another
- Shortened Case Name:
Hemmant Property Group Pty Ltd v Brisbane City Council & Another
 QPEC 6
RS Jones DCJ
25 Feb 2020