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Robertson v Brisbane City Council[2021] QPEC 44

Robertson v Brisbane City Council[2021] QPEC 44

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Robertson & Ors v Brisbane City Council & Ors [2021] QPEC 44

PARTIES:

MARK ROBERTSON and FREYA ROBERTSON

(first applicants)

v

JOHN BENNETT and SALLY BENNETT

(second applicants)

And

BRISBANE CITY COUNCIL

(first respondent)

And

WEYERS DEVELOPMENTS PTY LTD

(ACN 102 288 237)

(second respondent)

And

RD NOMINEES PTY LTD

(ACN 109 341 791)

(third respondent)

FILE NO:

607/2021

DIVISION:

Planning and Environment

PROCEEDING:

Hearing of an originating application.

ORIGINATING COURT:

Planning and Environment Court at Brisbane

DELIVERED ON:

2 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

30 and 31 August 2021

JUDGE:

RS Jones DCJ

ORDER:

  1. The application is dismissed.
  2. I will hear from the parties if necessary, as to any consequential orders.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL AGAINST APPROVAL – ORIGINATING APPLICATION – where respondent council approved development application for permit for building works and material change of use for multiple dwellings  – where development application approved subject to conditions requiring work on Transport Network to remove existing safety barrier for the purposes of refuse collection – where originating application sought declaratory relief – where relief sought concerned declaration that decision notice approving development application was void and to no effect – where declaration sought that decision notice be set aside – where application dismissed

ASSESSMENT BENCHMARKS – where development application approved subject to code assessment – whether jurisdictional error as to basis of assessment – whether development application ought have been impact assessable – whether proper construction of development application such that it can be inferred the developer sought approval for four storey dwelling – whether rooftop area comprising lift shaft and stairs constitutes storey – whether approval of development application unreasonable in context – whether council failed to exercise statutory discretion to approve or refuse development application

LEGISLATION:

Planning Act 2016 (Qld) s 60

Planning and Environment Court Act 2016 (Qld) s 11

CASES:

AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1

Australia Pacific LNG Pty Ltd v The Treasurer & Ors [2019] QSC 124

Craig v South Australia [1995] HCA 58; 184 CLR 163

Ferreyra v Brisbane City Council [2016] QPEC 10; [2016] QPELR 334

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

Project Blue Sky v Australian Broadcasting Association [1998] HCA 28; [1998] 194 CLR 355

Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors [2021] QCA 95

Zappala Family Co Pty Ltd v Brisbane City Council [2014] QCA 147; (2014) QPELR 686; 201 LGERA 82

COUNSEL:

Mr SJ Carius with Mr R Yuen for the applicants

Mr G Gibson QC with Mr N Loos for the first respondent

Mr D O'Brien QC with Mr W Macintosh for the second and third respondents

SOLICITORS:

Connor O'Meara Solicitors for the applicants

Brisbane City Legal Practice for the first respondent

HWL Ebsworth Solicitors for the second and third respondents

 Introduction

  1. [1]
    This proceeding is concerned with an originating application seeking declaratory relief and consequential orders.  For the reasons set out below, the orders of the court are:
  1. The application is dismissed.
  2. I will hear from the parties if necessary, as to any consequential orders.

Background

  1. [2]
    On 17 February 2020, the second respondent made a development application seeking approval for a material change of use for Multiple Dwellings (three units) on land situated at 50 Archer Street, Toowong, more properly described as Lot 1 on RP 56350.
  2. [3]
    Under the Brisbane City Council Plan 2014 (CP 2014), a number of relevant codes were identified which are unnecessary to dwell on at this stage.  It should be noted that any development restricted to three storeys and not exceeding 11.5 m in height is code assessable.  It is uncontroversial that the height of the building does not exceed 11.5 m.  One of the issues (if not the primary issue), raised by the applicants against the proposed development is that, properly considered, the proposed development involves four storeys and not three.
  3. [4]
    Between 11 March 2020 and October 2020, there were exchanges between the first respondent and the second respondent addressing a number of issues raised by the proposed development.  On 29 October 2020, the first respondent had prepared an assessment report in respect of the development application. The first respondent’s delegate approved the development application, subject to conditions.  That decision was accompanied by a Statement of Reasons.  Those reasons will be addressed in more detail below.  The applicants are immediate neighbours of the site on which the proposed development is to occur. 
  4. [5]
    On 15 March 2021, an originating application comprised of 45 pages was filed on their behalf.  Following that, an amended originating application comprised of 50 pages was filed on 7 May 2021.   The relief sought however remained unchanged.  The relief sought is:
  1. A declaration that the First Respondent’s Decision Notice dated 29 October 2020 (Decision Notice) approving, subject to development conditions, a development application for a development permit for building works and a development permit for a material change of use for Multiple Dwellings, which include development conditions that require work on the Transport Network to remove the existing pedestrian walkway safety barrier in Archer Street (the road safety barrier), for land situated at 50 Archer Street, Toowong (the land) is invalid and of no effect.
  2. An order that the Decision Notice be set aside; and
  3. Such further or other orders that the court deems appropriate.

The real issues

  1. [6]
    Notwithstanding the length of the originating application, as this proceeding evolved, the amended originating application alleged five errors in the decision-making process to approve the development application.  Those errors can be summarised as follows:
  1. That in assessing and deciding the development application, the first respondent proceeded on the mistaken basis that what was proposed was a three-storey multiple dwelling development.  To proceed on that basis involved a substantive error in that when looked at objectively, what is contemplated is a four-storey development.  The consequence of that is the first respondent should have required the proposed development to be assessed as impact assessable development rather than code assessable development.
  2. That in assessing and deciding the development application, the first respondent erred in concluding that Performance Outcome 18 (PO18) and PO19 of the Transport Access, Parking and Servicing code (TAPS code) were complied with.  And that in reaching its conclusion that those PO’s had been complied with, the first respondent had taken into account irrelevant considerations and/or failed to take into account relevant considerations.
  3. That in assessing and deciding the development application, the first respondent erred in findings concerned with the removal and replacement of a road safety barrier and that error was caused by:
    1. (a)
      taking into account irrelevant considerations;
    2. (b)
      failing to take into account relevant considerations; and/or
    3. (c)
      that the decision was one that no reasonable decision-making entity could have made.
  4. That in assessing and deciding the development application, the first respondent erred in finding that PO43 of the Multiple Dwelling code had been met in circumstances where the placement of refuse bins on the shared driveway would unacceptably interfere with the first applicant’s use of that driveway.
  1. [7]
    In addition, there was a general allegation that no properly informed decision-maker would have decided to approve the development application, as I understand it, having regard to those matters identified above concerning the Transport Access, Parking and Servicing code and PO43 of Multiple Dwelling code.
  2. [8]
    Whilst not expressly stated in the amended originating application, the relief sought is pursuant to s 11(1) of the Planning and Environment Court Act 2016 (PECA).  That section relevant provides:

General declaratory jurisdiction

  1. (1)
    Any person may start a P&E Court proceeding seeking a declaration (a declaratory proceeding) about—
  1. (a)
    a matter done, to be done or that should have been done for this Act or the Planning Act; or
  1. (b)
    the interpretation of this …
  1. (c)
    the lawfulness of land use or development under the Planning Act …”
  1. [9]
    In Ferreyra v Brisbane City Council, Judge Bowskill QC DCJ (as her Honour then was) made the following observations:[1]

“It is well-established that the function of the court in proceedings which seek declaratory relief of this kind are analogous to judicial review proceedings.  Consequently, the same constraints apply.  As recently observed by French CJ, Bell, Keane and Gordon JJ …

‘These constraints are aspects of the scope of judicial review of administrative action, which is confined to the legality of the Delegate’s decision.  In particular, judicial review is concerned with whether the Delegate’s decision was one which he was authorised to make; it is not:

‘an appellate procedure enabling either a general review of the … decision … or a substitution of the … decision which the … court thinks should have been made.’

The burden is on the applicants to demonstrate that the Council’s decision was affected by jurisdictional error.  Although the basis(es) on which this was contended was not entirely clear in the originating application … as clarified during the course of the hearing, the applicants contend that the Council’s delegate erred in the following ways: …”’

  1. [10]
    With respect, her Honour’s observations are clearly correct.  In this context, it is also clear that any review of the decision-making process ought not be the subject of a microscopic assessment of the merits of the decision.  In Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[2] Brennan CJ, Toohey, McHugh and Gummow JJ said:

“These propositions are well settled.  They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”

  1. [11]
    In Australia Pacific LNG Pty Ltd v The Treasurer & Ors,[3] Bond J (as his Honour then was) accepted a submission made to the effect that:

Properly analysed, an irrelevant consideration is one which, as a matter of construction of the legislative provisions, cannot permissibly be taken into account.”[4]

  1. [12]
    His Honour then went on to observe:[5]

“If a decision-maker relies on irrelevant material in a way that affects the exercise of power the decision-maker makes an error of law, and doing so results in the decision-maker exceeding the authority or powers given by the relevant statute …” (emphasis added)

  1. [13]
    After considering a number of decisions, his Honour then went on to say:[6]

“It follows that in order to obtain the relief which they seek in respect of this ground, the applicants must demonstrate:

  1. (a)
    first, the alleged irrelevant consideration was, as a matter of law, to be regarded as an irrelevant to the exercise of power;
  1. (b)
    second, the decision-maker relied on the alleged irrelevant consideration in a way which affected the exercise of power;
  1. (c)
    third, the proper exercise of discretion would be to set aside the decision and to order it to be re-exercised.”
  1. [14]
    His Honour then went on to consider the allegation of failing to take into account a relevant consideration.  His Honour observed:[7]

“Under this ground of review, the applicants must show that the Minister was bound to take into account the alleged relevant considerations that they identified…

It follows that in order to obtain the relief which they seek in respect of this ground, the applicants must demonstrate:

  1. (a)
    first, the alleged relevant consideration was, as a matter of law, to be regarded as a consideration which the Minister was bound to take into account in the exercise of power;
  1. (b)
    second, the decision-maker failed to take the relevant consideration into account;
  1. (c)
    third, because of the materiality of the consideration, the proper exercise of discretion would be to set aside the decision and to order it to be re-exercised.”
  1. [15]
    In the applicants’ written submissions, it is asserted that:[8]

“It is well-recognised that a decision of Council may be reviewed on the basis of what is termed “Wednesbury unreasonableness”.  The test derives from Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 at 230 …

Wednesbury unreasonableness has typically been reserved for a decision that is so objectively devoid of justification that no reasonable body of persons could have reached it.  The approach of the Court is outcome focused and a judgment that is formed almost intuitively.”

  1. [16]
    In the Minister for Immigration and Citizenship v Li,[9] the High Court confirmed that legal unreasonableness as a ground of review was not limited to that formulation referred to as the “Wednesbury unreasonableness.”  In Li, the court noted:

“As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts that unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.” [10]

  1. [17]
    In Australia Pacific LNG, Bond J observed as follows:[11]

“It is clear now that, subject to one caveat, any summary of general principle in relation to this ground of judicial review should not start with the proposition that at general law judicial review on the grounds of legal unreasonableness is concerned with: (1) the rebuttable presumption that the valid exercise of administrative power is conditioned on the repository of the power exercising it within the bounds of legal unreasonableness; and (2) the discernment of the ambit of those bounds in the particular case, having regard to the scope, purpose and objects of the statutory source of the power.  The various ways in which Courts have expressed the circumstances in which it might be appropriate to conclude that the bounds have been exceeded (e.g. ‘manifestly unreasonable’, ‘illogical’, ‘irrational’, or ‘lacks an evident and identifiable justification’) do not confine the manner of discernment of the bounds of any particular case, but are examples of when the appropriate conclusion might have been drawn in different cases.

The caveat of course is that at least in Queensland and the Commonwealth by statute, an administrative decision under enactment must be exercised within the legal bounds created by the proposition that it must not be an exercise of power that is so unreasonable that no reasonable person could so exercise the power.  There is no reason to think that matter of determining the bounds of legal reasonableness was intended to codify the law.  However if the legal bounds so defined are exceeded in a particular case then the statutory ground of judicial review would be established.”

  1. [18]
    The applicants also relied on the statement of principle from Craig v South Australia that if an administrative tribunal:

“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least at some circumstances, to make an erroneous finding or to reach a mistake in conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or power. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.” [12]

  1. [19]
    Finally, it is uncontroversial that “the established principles and cannons of statutory construction should be applied” when construing planning documents.[13] However, it is also recognised that planning schemes often contain imprecise and sometimes even apparently contradictory language. In that regard, in Zappala Family Co Pty Ltd v Brisbane City Council,[14] Morrison JA observed:

“The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes.

Three or four stories?

  1. [20]
    The controversial space of the proposed development is a 30/33m² walled and roofed structure situated above the roof line of the third storey. This space would occupy approximately 10% of the total surface area of the third storey (unit 3) and of that 30/33m2 area, approximately 50% is occupied by a lift and stairwell.
  2. [21]
    It is submitted on behalf of the applicants that this area of 30/33m² constitutes an additional storey and, as a consequence, the proposed development ought properly be considered a four storey development. As a four-storey development, it would require impact assessment whereas a three-storey building only requires code assessment. A storey is defined in CP 2014 as follows:

“a. means a space within a building between floor levels, or a floor level and a ceiling or roof other than –

  1. A space containing only lift shaft, stairwell or meter room; or
  2. A space containing only a bathroom, shower room, laundry, toilet or other sanitary compartment; or
  3. A space containing only a combination of things stated in subparagraph (i) or (ii) or

…”

  1. [22]
    It is submitted on behalf of the applicants that there are six matters which, when taken into account, would lead to the conclusion that what is proposed is a four-storey building.
  2. [23]
    The first matter raised is that:[15]

“The Roof Terrace Drawing shows a roof terrace that contains, inter alia, a space within the building labelled lift showing the lift shaft, a space within the building labelled stair showing the stairway and a space within the building labelled “Stair access,” which on the Section C Drawing is shown to be roofed and enclosed.

Elsewhere in the plans submitted to Council, the same spaces referred as to a lift lobby or “Unit Three Lobby” or “lobby.” In any event, it is significant that this space is physically external to the identified lift shaft and stairway and described separately. The lift lobby or lobby space in front of the lift shaft and stairs (the lobby) is not in any way represented to be part of the lift shaft or the stairway on the face of the plan and this objectively indicates that it is a further space within the building that does not fall within one of the spaces excluded from the definition of a ‘storey’.

Further, there is no question that the space which contains the lobby would at least answer the description of a roof structure on the roof. It will only be excluded from the definition of storey if it ‘only accommodates building plant and equipment’. Here it does not.”

  1. [24]
    This point is entirely misconceived. The space, consistent with the exemption provided for in the definition of a storey does in fact contain only a lift shaft and stairway. The reference to the balance area of some 14/16 m² as being a lobby is irrelevant. The balance of the space not occupied by either the lift or the stairwell will provide nothing more than a space for people to wait for the lift or to otherwise step into when exiting the lift or walking up the steps.
  2. [25]
    At one stage during oral submissions, it seemed to be suggested that that part of the controversial space not physically occupied by the lift and stairs could be used for another purpose. As already indicated, it is an area of 15/16m². The plans make it abundantly clear that this space is not to be a part of the entertainment area on the roof which contains, among other things, a barbeque area and a pool. The controversial space is in fact segregated from that entertainment area by a wall which can only be accessed by a door which would seem to be of only conventional dimensions. That the space fronting the lift and stairwell is sometimes described as a lobby area is of no consequence whatsoever.
  3. [26]
    The second point raised is as follows:[16]

“The GFA Drawing that was part of the Development Application plans (and ultimately, form part of the approved plans in the Decision Notice) provides further support for the conclusion that the space which contains the ‘lobby’ is part of a storey. The GFA Drawing includes the lobby area in the gross floor area. When one considers the definition of gross floor area, it includes anything which is part of a storey. The inclusion of the space which contains ‘lobby’ in the gross floor area leads objectively to a presumption that it is part of a storey unless it is demonstrated to be properly excluded.”

  1. [27]
    I have already dealt with the use of the word “lobby” within some of the plans and do not intend to say anything more about it. The reference to the gross floor area is irrelevant to determining whether this space is, properly defined, a storey for the purposes of CP 2014.
  2. [28]
    The third matter raised focuses on the precise wording in the definition of a storey, namely a space containing only a lift shaft, stairway or meter room. It is said:[17]

“When one returns to the express language of the definition, the intention of the author of the City Plan is expressed by the use of the word ‘only’. Other spaces allegedly ‘incidental’ to a lift shaft are excluded by the express words. The implication of additional exclusions is not logically necessary at all. There are express words excluding a lift shaft from the definition of storey. However there’s no logic (and it certainly cannot be said to be necessary) to exclude the lobby space from the definition. It is simply a design choice.”

  1. [29]
    This submission, at least as far as I can understand it, would seem to suggest that to avoid falling within the definition of a storey for the purposes of CP 2014, any structure containing a lift and/or stairwell would be limited to just that. That is, a person would exit the lift or arrive at the top of the stairs and step out into open space. Such a conclusion is entirely illogical the exemption refers to “a space containing only a lift shaft, stairway…” That is the situation here. As has already been addressed, it would be nonsensical not to have some covered space, be it a foyer or a lobby, to accommodate those waiting for a lift, exiting a lift or walking up the stairs.
  2. [30]
    At one stage during oral submissions, Mr Carius seemed to suggest that it was not so much the area of this space that was of concern, but rather the fact that the space is surrounded by four walls and covered by a roof. To not have four walls and a roof would leave the lift and stairs exposed to the elements, which is hardly a satisfactory outcome. Further, understandably there is nothing in CP 2014 to suggest that the space containing a lift and stairwell cannot be surrounded by four walls and a roof.  
  3. [31]
    The fourth matter relied on behalf of the applicants is that to cause this controversial space to be considered a storey would provide planning certainty and avoid absurdity. There is nothing in that point and I do not intend to say anything further about it.
  4. [32]
    The fifth and sixth matters relied on on behalf of the applicants are set out in paragraphs 74 to 76 of their written submissions. I do not intend to set them out in full or to deal with them in any detail. They are not really to the point and, as a consequence, lack merit.
  5. [33]
    For the reasons given, I have reached the conclusion that there is no merit in the submissions made contending that this a four-storey building and not a three storey building. It is a three-storey building.

Pedestrian safety and refuse collection

  1. [34]
    The subject site has only a 5.8m frontage to Archer Street. Also, at this point, Archer Street turns at almost a 90-degree angle. Pedestrians and property are currently protected at this point from errant vehicular movements by a metal guard rail. It is intended that that guard rail will be removed and be replaced with energy absorbing bollards which would be spaced at 1.3m intervals.
  2. [35]
    Under the heading “Discussion,” the following submissions were made on behalf of the applicants:[18]

“Council has approved the removal of one safety barrier and its replacement with bollards. That is, on any view, a safety decision.

The only rational and intelligible justification for a safety decision of this kind is a safety justification. The decision to space bollards a certain distance apart must address the safety of the pedestrians using the footpath along a dangerous corner of a street used by motorcycles and cyclists.

The email of Mr Pickerill does not provide a sufficient rational foundation for the decision. The evidence suggests that Council did not commission a full safety assessment before making this decision. The email of Mr Pickerill does not constitute such an assessment and, in fairness to him, he was not asked to perform an assessment. Further, the evidence of Ms Robertson suggests that Council was conscious that it had not commissioned a safety report/safety assessment at the time of the development application was approved.

Rather the evidence suggests that the Developer determined the distance between the bollards with a purpose of facilitating refuse collection and Council approved this decision. Given the gravity of the safety issue and its consequences for the community, no reasonable local government would approve a development removing a safety barrier and replacing it with another unless it was satisfied that it had considered all relevant safety issues. The self evident danger to be pedestrians in a 1.3m gap (or to put it another way, protected only by one bollard in an approximate 2.7m gap) required that more be done.

Thus, it is submitted that not only is the decision legally unreasonable in the sense referred to in Li, it is not a decision that any reasonable decision maker, charged with designing a safety barrier that is equivalent or superior to the barrier it replaces, could ever come to in the sense used in Wednesbury.” (emphasis added)

  1. [36]
    Under the heading “Conclusion” it is then asserted:[19]

“In the circumstances, it is respectfully submitted that Council’s decision to reduce pedestrian safety by removing, it is respectfully submitted  that Council’s decision to reduce pedestrian safety by removing an effective safety barrier to meet the convenience of the developer in having refuse collected offsite, as opposed to onsite, was the decision so devoid of logic that no reasonable decision maker could have made it. In any event, on the material before Council, it lacked an evident or rational justification.” (emphasis added)

  1. [37]
    Before proceeding further, I would make the following observations. With all due respect, the evidence of Ms Robertson on this point is of little, if any, relevance. Second, Mr Pickerill was, at the relevant time, the acting Senior Network Engineer of Transport Planning Programs and Operations. Next, during oral submissions, at one stage Mr Carius said that the real issue was not the replacing of the guard rail with bollards but rather the spacing of the bollards.[20] In fact, he said that the spacing of the bollards was “a critical issue”.
  2. [38]
    Notwithstanding that, the submissions then proceeded on the basis that it was the replacement of the guard rail that was in issue. Finally, in this context, Mr Carius was asked on a number of occasions to take me to any material which might at the very least indicate that the replacement of the metal barrier with the energy absorbing bollards would reduce pedestrian safety. Despite having 10 volumes of material before me containing no doubt more than 1000 pages, I was not taken to any material to support the proposition that pedestrian safety would be reduced.
  3. [39]
    In the decision of the first respondent’s delegate, it is said:

“There is adequate clearance from the bins to the footpath and the existing guard rail will be replaced with energy absorbing bollards which will improve pedestrian safety on the footpath when compared to the existing situation and allow for refuse bins to be presented to the curb side.” (emphasis added)

  1. [40]
    The reference to the improvement of pedestrian safety can be referenced back to an email prepared by Mr Pickerill on 18 June 2020 which was copied to other engineers employed by the respondent. That email provided as follows:

“TPO’s perspective is as follows:

  • Linear road safety barrier systems are not tested at impact angles greater than 25 degrees. In this case, the likely impact angle of any vehicle on a trajectory towards the house that it is purporting to shield could be significantly greater
  • Semi-rigid barrier systems (such as W-beam guard rail) have minimum effect of system lengths, as the departure and end terminal are gating (i.e. provide no redirective capability). A standard MELT approach and terminal has a gating length of 22.5m (TMRSD1474). The existing guard rail system has the total length of less than half of that.
  • Given the above, the excising guard rail is unlikely to provide any protection or redirective capabilities for anything other than a very load speed impact.
  • The existing approach and terminal design (whale tail) has been deprecated as it represents a potential spearing hazard for the occupants of an errant vehicle.
  • The existing guard rail provides minimal benefit, if at all, and can be removed.
  • If there is still a desire to mitigate the risk of errant vehicles leaving the roadway at this location, the Energy Absorbing Bollard Hazard Protection Treatment on BSD-7091 appears to be a potential option, subject to the ability to locate the required footings in a very constrained verge. (emphasis added)
  1. [41]
    The assertion made on behalf of the applicants that the existing barrier is an “effective safety barrier” is not supported by any material. On the other hand, there is engineering evidence that the existing barrier would not provide effective protection if struck by a vehicle travelling at any speed. Although pedestrians are not expressly referred to in Mr Pickerill’s email, that the proposed bollards would provide better protection for pedestrians and other users of the footpath is necessarily implicit in his assessment. 
  2. [42]
    For the reasons given, no error has been revealed in respect of the decision to replace the existing guard rail with the energy-absorbing bollards.
  3. [43]
    Turning then to the issue of refuse collection.  It is necessary to bear in mind that the subject land has only 5.8m frontage to Archer Street.  PO43 of the Medium Density code provides:

“Development provides refuse and recycling collection and storage facilities that:

  1. (a)
    are located conveniently in an unobtrusive dedicated storage room or separate screen structure
  2. (b)
    are located and managed so that adverse impacts on building occupants, neighbouring properties and the public realm are minimised
  3. (c)
    provide for refuse and recycling including source separation
  4. (d)
    ….
  5. (e)
    …..” (emphasis added)
  1. [44]
    On behalf of the applicants, it is submitted as follows:[21]

“The key question in relation to PO43 is whether the refuse and recycling collection and storage facilities of the proposed development are managed so that the adverse impacts on neighbouring properties and the public realm are minimised.

There is some overlap between this issue and the safety barrier issue which triggers the unreasonableness submissions above.”

The conditions of the approval shift burdens onto neighbouring properties in a way that does not minimise the impact on the public realm in that:

  1. (a)
    Council has approved the storing of bins on the frontage of a neighbouring property;
  2. (b)
    Council has approved the location of a bin on a shared driveway which is narrow and already has substantial access issues;
  3. (c)
    Council has approved the removal of an existing pedestrian safety barrier and its replacement with bollards spaced 1.3 meters apart purely to facilitate the collection of refuse from the public site, for the reasons advanced above, cannot be rationally defended; and
  4. (d)
    In the circumstances Council could not be satisfied that PO4 was met.

Accordingly, Council’s delegate erred in finding that there was no compliance with PO43 of the MD Code and it constituted jurisdictional error.” (emphasis added)

  1. [45]
    The first thing I would note is that it is a misrepresentation of the situation to say that the introduction of bollards to replace the existing guard rail was a matter purely to facilitate the collection of refuse.  As has already been discussed, the existing guard rail provided little if any protection against an errant vehicle travelling at speed. 
  2. [46]
    The issue of refuse collection was a matter dealt with by the delegate when addressing concerns about refuse collection and the removal of the guard rail along Archer Street.  Insofar as the collection of refuse bins is concerned, it was reported:

“Refuse bins are to be presented partially within the proposed driveway crossover and within the verge adjoining the neighbouring property, which is a performance outcome.  It is noted that the bins will only be in this location temporarily when presented for collection.  Detailed engineering plans provided by PTT Traffic and Transport Engineering (Registered Professional Engineer Qld) indicate a dedicated area for the storage of bins within the property boundary as well as the kerbside area nominated for bin collection.  There will be adequate clearance from the bins to the footpath and the existing guard rail will be replaced with energy-absorbing bollards which will improve pedestrian safety on the footpath when compared to the existing situation.

Given the limited number of bins to be presented, it is considered that the proposed refuse collection arrangements will not cause a significant adverse amenity issue or present a significant safety concern to pedestrians using the footpath and the proposal complies with the requirements of City Plan 2014.” (emphasis added)

  1. [47]
    Performance Outcome 43 is concerned with minimising adverse impacts, not the total elimination of those impacts.  It is abundantly clear that the respondent turned its mind to the relevant issues and gave a considered decision in respect of those issues.  Accordingly, the attack on the respondent’s decision concerning refuse collection is without merit. No error has been revealed.

The Transport Access, Parking and Servicing Code (TAPS) issue

  1. [48]
    Performance Outcome 19 of the TAPS Code provides:

“Development layout provides for services which:

  1. (a)
    Wholly within the site other than service vehicle manoeuvring areas may overhang the verge on a minor road where use of the footpath is not adversely affected…”
  1. [49]
    The applicants zero in on the reference to the requirement that the services must be located wholly within the site and that the delegate of the respondent reported:

“PO19 of Council’s TAPS code is also considered to be complied with as the development layout provides for services which:

  1. (a)
    Are wholly within the site, other than service vehicle manoeuvring areas which may overhang the verge on a minor road where use of the footpath is not adversely affected…”
  1. [50]
    It is uncontroversial that a larger vehicle such as a Medium Rigid Vehicle (MRV) could not be wholly accommodated within the site. 
  2. [51]
    It is necessary to bear in mind that the subject site has only 5.8metres frontage, has a shared access arrangement with its neighbour and a steep gradient.  The difficulties associated with accessing this site were given particular attention by the respondent.  In the decision by the delegate, it was reported:

“AO19.2 also states that development provides on-site servicing facilities and associated on-site vehicle manoeuvring areas which are designed in compliance with the service area design standards in the TAPS PSP.

Whilst the proposed Multiple Dwelling is required to accommodate occasional access by a Large Rigid Vehicle (LRV), i.e. a furniture removal truck, it is considered that a typical commercial vehicle for furniture servicing would be a Medium Rigid Vehicle (MRV).  In addition, the subject site has limitations including sharp gradients, a very limited site frontage and a shared driveway crossover.

Detailed engineering plans provided by PTT Traffic and Transport Engineering (Registered Professional Engineer Qld) indicate swept path analysis for occasional accessing of the site by an MRV.  This demonstrates the MRV reversing onto the site from Archer Street (i.e. minor road) and exiting Archer Street in a forward gear.  The majority of the MRV can stand within the site and clear of the footpath along the site frontage.  The swept path also indicates that a car can access the adjacent property while the MRV is standing on the site…” (emphasis added)

  1. [52]
    It can be said that PO19 has not been strictly complied with. However, having regard to the physical characteristics of the site (including the shared access arrangements), together with the infrequent occurrence of any part of a MRV or LRV extending beyond the site and even then still permitting car access and egress from the adjoining property, it could not be reasonably said that the respondent’s decision to find that PO19 had been complied with was affected by jurisdictional error.  In this regard, it is also necessary to bear in mind s 60(2) of the Planning Act 2016 which provides:

“To the extent the application involves development that requires code assessment, and subject to s 62 the assessment manager, after carrying out the assessment—

  1. (a)
    must decide to approve the application to the extent the development complies with all of the assessment benchmarks for the development; and
  2. (b)
    may decide to approve the application even if the development does not comply with some of the assessment benchmarks…”
  1. [53]
    It is abundantly clear that the delegate was alert to the fact that for larger vehicles, they could not be entirely accommodated within the site but was also aware of the militating factors to which I have referred to above in reaching the decision that she did. There is no merit in the submission that the decision was so devoid of logic that no reasonable decision-maker could have made it and that the decision “lacked an evident or rational justification.
  2. [54]
    Again, no error has been revealed.
  3. [55]
    During oral submissions, Mr Carius referred to the first respondent’s Statement of Reasons for Decision.  That document commenced with the words “the proposal demonstrates compliance with City Plan 214 in that….”  That statement is followed by 15 paragraphs dealing with certain aspects of the proposed development and then a recommendation of approval.
  4. [56]
    It was submitted on behalf of the applicants that in respect of PO19 of the TAPS code, the first respondent wrongly concluded that there was compliance and, acting on that mistaken belief, led itself into error.[22]
  5. [57]
    That submission cannot succeed.  The statement of reasons is, as I read it, a summary of a number of matters addressed in more detail in the 18-page assessment report.  In that report, that a larger vehicle cannot be wholly accommodated within the site is addressed in at least two pages.[23]  In those circumstances, I am unable to accept that the first respondent acting upon a mistaken belief about compliance, then considered that it had no option but to approve as a consequence of the operation of s 60(2)(a) of the Planning Act 2016.
  6. [58]
    The applicants have failed to reveal any error in the decision-making process of the first respondent to approve the proposed development. It is therefore not necessary for me to deal with the submissions made on behalf of the second and third respondents concerning delay.
  7. [59]
    For the reasons given, the orders of the court are:
    1. The application is dismissed.
    2. I will hear from the parties if necessary, as to any consequential orders.

Footnotes

[1][2016] QPELR 334 at [5].

[2](1996) 185 CLR 259 at [31].

[3][2019] QSC 124.

[4]Ibid at [191].

[5]Ibid at [192].

[6]Ibid at [195].

[7]Ibid at [230] – [232].

[8]Written Submissions of Applicants at paras 78 – 79.

[9](2013) 249 CLR 332.

[10]Ibid at [76].

[11]Australia Pacific LNG Pty Ltd v The Treasurer & Ors [2019] QSC 124 at [161] – [162].

[12](1995) 184 CLR 163 at 179.

[13]AAD Design Pty Ltd v Brisbane City Council [2013] 1 Qd R 1 at [74]. See also Project Blue Sky v Australian Broadcasting Association [1998] 194 CLR 355 at [69] – [71].

[14]201 LGERA 82 at [56]. See also Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors [2021] QCA 95 per Brown J.

[15]Written Submissions of Applicants at paras 64 – 66.

[16]Written Submissions of Applicants at para 68.

[17]Written Submissions of Applicants at para 71.

[18]Written Submissions of Applicants at paras 95 – 99.

[19]Written Submissions of Applicants at para 100.

[20]T1-35 and lines 20 – 23.

[21]Written Submissions of Applicants at paras 124 – 127.

[22]T2-31 at lines 33 – 47 to T2-33 at lines 1 – 23.

[23]Exhibit 2 at pp 530 and 534.

Close

Editorial Notes

  • Published Case Name:

    Robertson & Ors v Brisbane City Council & Ors

  • Shortened Case Name:

    Robertson v Brisbane City Council

  • MNC:

    [2021] QPEC 44

  • Court:

    QPEC

  • Judge(s):

    RS Jones DCJ

  • Date:

    02 Sep 2021

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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